GOLDBLUM v. Franklin Hospital Medical Center, appellant. (2006)

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Franklin Hospital Medical Center appeals from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated December 14, 2004, as denied its motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 CPLR 3216 is “extremely forgiving” (Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460) in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” (Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568;  see CPLR 3216[a], [e];  Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102;  Baczkowski v. Collins Constr. Co., supra at 504-505, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Tolmasova v. Umarova, 22 A.D.3d 570, 802 N.Y.S.2d 241).   While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action (see CPLR 3216[e];  Di Simone v. Good Samaritan Hosp., supra), such a dual showing is not strictly necessary to avoid dismissal of the action (see Baczkowski v. Collins Constr. Co., supra at 503-505, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Davis v. Goodsell, supra at 383-384, 774 N.Y.S.2d 568).

Here, the plaintiffs received the appellant's 90-day notice on May 27, 2004, and did not file a note of issue within the 90-day period.   However, the facts negated any inference that the plaintiffs intended to abandon the action (see Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568;  Martinisi v. Cornwall Hosp., 177 A.D.2d 549, 551, 576 N.Y.S.2d 150).   The plaintiffs retained new counsel in April or May 2004, served discovery demands at about the same time as the 90-day notice was served, and engaged in further discovery during the 90-day period.   Moreover, the appellant served notices to take depositions of nonparty witnesses on September 15, 2004, and the appellant delayed responding to the discovery demands, which contributed to the delay in filing the note of issue (see Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568;  Coleman v. Baker/Mellon Stuart Constr., 286 A.D.2d 924, 730 N.Y.S.2d 630;  Donegan v. St. Joseph's Med. Ctr., 283 A.D.2d 152, 724 N.Y.S.2d 582;  Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 690 N.Y.S.2d 643).

Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to prosecute.