AMANDA v. Joseph Collea, as Principal of Ilion High School, Robert Service, as Superintendent of Ilion Central School District, Gary Tutty, as Former Superintendent of Ilion Central School District, and Ilion Central School District, Defendants-Appellants.  (Appeal No. 1.). (2008)

 Plaintiff commenced this action seeking damages allegedly resulting from an inappropriate sexual relationship with her high school guidance counselor, defendant Scott Stearns.   Defendants-appellants (defendants) moved to dismiss the complaint against them pursuant to CPLR 3216, for failure to prosecute.   We conclude under the circumstances of this case that Supreme Court did not abuse its discretion in denying defendants' motion on the condition that plaintiff complete pretrial discovery and file a note of issue and certificate of readiness for trial by a date certain.   Even assuming, arguendo, that plaintiff failed to establish a justifiable excuse for any delay and a meritorious cause of action upon failing to comply with defendants' 90-day demand (see CPLR 3216[e] ), we note that “[a] court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even [under those circumstances]” (Rust v. Turgeon, 295 A.D.2d 962, 963, 746 N.Y.S.2d 223;  see Strathearn v. Star Land & Dev. Co., LLC, 28 A.D.3d 1250, 812 N.Y.S.2d 916;  Restaino v. Capicotto, 26 A.D.3d 771, 808 N.Y.S.2d 879;  see generally Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460).   We further note that “ ‘[t]here is no parallel between the circumstances of the instant case and those where CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution, and lack of any tenable excuse for such delay’ ” (Davis v. Goodsell, 6 A.D.3d 382, 384, 774 N.Y.S.2d 568).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: