Here is a budding legal malpractice case, arising out of a medical malpractice action.  2 defendants serve 90 day notices, and plaintiff tries to file a Note of Issue.  Clerk rejects NOI, and instead of immediately making a motion seeking more time, or the right to file a NOI, plaintiff puts the entire matter aside.

"Contrary to the defendants’ contentions, the Supreme Court could not have properly dismissed the actions for the plaintiffs’ failure to comply with the October 23, 2000, compliance conference order. Although a compliance conference order which directs a plaintiff to file a note of issue, and warns that the failure to do so will result in dismissal of the action, may constitute a valid 90-day notice pursuant to CPLR 3216 (see Bowman v Kusnick, 35 AD3d 643; Hoffman v Kessler, 28 AD3d 718), here the plaintiffs’ counsel was not present at the October 2000 compliance conference, and there is no evidence that the compliance conference order was ever properly served upon the plaintiffs.

However, the Supreme Court should have dismissed the actions based upon the plaintiffs’ failure to comply with the 90-day notices served by the defendants in May 2005. Where a party is served with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to comply with the notice by filing a note of issue or by moving, before the default date, to vacate the notice or extend the 90-day period (see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; C & S Realty, Inc. v Soloff, 22 AD3d 515; Chaudhry v Ziomek, 21 AD3d 922). The plaintiffs did not file a note of issue before the default date set by the 90-day notices, and their August 2005 motion for an extension was rejected without being decided. Since the plaintiffs thus failed to properly respond to the 90-day notices within the allotted period of time, in order to avoid dismissal they were required to demonstrate both a justifiable excuse for the delay and the existence of a meritorious cause of action (see CPLR 3216; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; Parkin v Ederer, 27 AD3d 633; Chaudhry v Ziomek, [*3]21 AD3d 922). Although the plaintiffs’ August 2005 motion was rejected, they took no further steps to obtain an extension of time to file a note of issue until June 2006, when they responded to the defendants’ motions to dismiss by filing the cross motion now under review. The plaintiffs offered no excuse to justify their extensive delay in seeking an extension, or their lengthy delays in prosecuting this action (see Harrington v Toback, 34 AD3d 640). Moreover, the plaintiffs failed to demonstrate the existence of a meritorious malpractice cause of action against Eswar (see Mosberg v Elahi, 80 NY2d 941, 942; Salch v Paratore, 60 NY2d 851, 852; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441; Randolph v Cornell, 29 AD3d 557; Burke v Klein, 269 AD2d 348). "