Billings v. Berkshire Mutual Insurance

— Yesawich, Jr., J.

Appeal from an order of the Supreme Court (Mercure, J.), entered May 20, 1986 in Schenectady County, which denied plaintiffs motion to renew or reargue a previous order dismissing the complaint against defendant Berkshire Mutual Insurance Company.

In 1981 plaintiff commenced an action to recover upon a fire loss sustained in 1980. On June 20, 1985, pursuant to CPLR 3216, defendant Berkshire Mutual Insurance Company served a written demand upon plaintiff to file a note of issue. More than 90 days had elapsed and the demand had not been complied with when, on September 23,…