CARINO ITALIAN STYLE v. SHAMMAH (1999)

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 2, 1998, denying the motion to vacate the court's memorandum decision/order dated April 15, 1998, which had dismissed the complaint for neglect to prosecute, unanimously reversed, on the law, the facts, and in the exercise of discretion, with costs against each defendant, the motion granted, and the complaint reinstated.

There is no allegation by defendants-respondents, nor any finding by the trial court, that a written ninety day demand to file and serve a note of issue was served on plaintiffs-appellants as required by CPLR 3216(b).   In Baczkowski v. Collins Construction Company, 89 N.Y.2d 499, 502-503, 655 N.Y.S.2d 848, 678 N.E.2d 460, the Court of Appeals underscored the limits upon a court's ability to dismiss an action for failure to prosecute:  “CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals.   The provision has a checkered history, which this Court has recounted on prior occasions (see, e.g. Chase v. Scavuzzo, 87 N.Y.2d 228, 231-233 [638 N.Y.S.2d 587, 661 N.E.2d 1368];  Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 244-246 [303 N.Y.S.2d 633, 250 N.E.2d 690];  see also Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3216:1-C3216:4, at 628-635).   As a result of a 1967 amendment to CPLR 3216, courts are prohibited from dismissing an action for neglect to prosecute unless the statutory preconditions to dismissal are met (see, CPLR 3216[b];  Cohn v. Borchard Affiliations, supra, 25 N.Y.2d, at 246 [303 N.Y.S.2d 633, 250 N.E.2d 690] ).”  See also, Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Wisniewski v. Wisniewski, 149 A.D.2d 965, 540 N.Y.S.2d 101;  Banca DiRoma v. Tripodi, 219 A.D.2d 536, 631 N.Y.S.2d 821;  and, Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 635 N.Y.S.2d 691.

This Court substitutes its own discretion in place of the Supreme Court's to reinstate the complaint of the Plaintiffs-Respondents.

MEMORANDUM DECISION.