RESTAINO v. CAPICOTTO (2006)

 Supreme Court did not abuse its discretion in denying defendants' respective cross motions to dismiss the complaint for failure to prosecute pursuant to CPLR 3216 and in granting that part of plaintiffs' motion to strike defendants' 90-day demands.  “A court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even when a plaintiff fails to comply with the 90-day requirement and fails to demonstrate a justifiable excuse and a meritorious cause of action” (Rust v. Turgeon, 295 A.D.2d 962, 963, 746 N.Y.S.2d 223;  see Davis v. Goodsell, 6 A.D.3d 382, 383-384, 774 N.Y.S.2d 568;  see generally Baczkowski v. D.A. Collins Constr. Co., 89 N.Y.2d 499, 504-505, 655 N.Y.S.2d 848, 678 N.E.2d 460).   Here, plaintiffs established that their failure to comply with the 90-day requirement was the result of law office failure, i.e., filing but neglecting to serve plaintiffs' motion to strike the demands within the 90-day period (see generally Pastore v. Golub Corp., 184 A.D.2d 827, 584 N.Y.S.2d 339), and the efforts of plaintiffs to move the case forward during that period “ negated any inference that [they] intended to abandon [the] action” (Martinisi v. Cornwall Hosp., 177 A.D.2d 549, 551, 576 N.Y.S.2d 150).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: