F.E., etc., et al., Plaintiffs–Respondents, v. Dr. Carmen Santiago et al., Defendants–Appellants. (2026)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered April 10, 2025, which, to the extent appeal from as limited by the briefs, granted plaintiffs’ motion for leave to file the note of issue and denied the motion of defendants Dr. Carmen Santiago, Dr. Aparna Kulkarni, Dr. Yves Verna, and Bronx Lebanon Hospital pursuant to CPLR 3216(b) and (e) to dismiss the complaint for failure to file the note of issue, unanimously affirmed, without costs.

Defendants satisfied the requirements of CPLR 3216 by timely and properly serving plaintiffs with a 90–day notice on January 11, 2024, warning them about the potential for dismissal if they failed to resume prosecution of the action within 90 days (CPLR 3216[b]).  Defendants’ service of the 90–day notice through New York State Courts Electronic Filing System (N.Y.SCEF) rather than by certified or registered mail did not invalidate the notice (see Uniform Rules for Trial Cts [22 NYCRR] § 202.5–b[d][1][i], [3][ii], [f][2][ii]).  Service through NYSCEF was at most a procedural irregularity that should be overlooked in the absence of prejudice (see Balancio v. American Opt. Corp., 66 N.Y.2d 750, 751, 497 N.Y.S.2d 360, 488 N.E.2d 106 [1985]).

We find that Supreme Court properly granted plaintiffs’ motion for leave to file a late note of issue.  CPLR 3216 is an “extremely forgiving” rule which “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” (Espinoza v. 373–381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [1st Dept. 2009] quoting Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568 [2d Dept. 2004]).

Plaintiffs’ motion for leave to file a late note of issue made on April 13, 2024, was two or three days late.  Although plaintiffs defaulted on the 90–day notice, a defaulting plaintiff who fails to act as required by the 90–day notice may avoid dismissal by showing a “justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216[e];  see Baczkowski v. D.A. Collins Constr. Co., Inc., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997]).

Plaintiffs’ motion for leave to file the note of issue demonstrated a justifiable excuse, as there were circumstances which reasonably made it impossible for “[counsel] to certify ․ that this case [was] ready for trial.”  Plaintiffs also established a meritorious cause of action by submitting an expert opinion on defendants’ departure from the standard of care in their 2005 treatment of then-infant plaintiff F.E.

Moreover, “the circumstances presented also do not suggest an intent to abandon prosecution, persistent neglect on the part of plaintiff, or particular prejudice to defendants” (Gayle v. Body, 157 A.D.3d 541, 541, 66 N.Y.S.3d 607 [1st Dept. 2018]).  Accordingly, the Supreme Court providently exercised its discretion in granting plaintiffs’ motion.