PRIMIANO v. Simpson Electric, third-party defendant-respondent. (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dorsa, J.), entered July 2, 2007, which granted the defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute and denied the plaintiffs' cross motion to vacate a stay of the trial on damages.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the defendants' motion is denied, the plaintiffs' cross motion is granted, and the stay of the trial on damages is vacated.

 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., 89 N.Y.2d 499, 504-505, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Davis v. Goodsell, 6 A.D.3d 382, 383-384, 774 N.Y.S.2d 568).   When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period (see Turman v. Amity OBG Assoc., 170 A.D.2d 668, 567 N.Y.S.2d 87;  Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483;  Mason v. Simmons, 139 A.D.2d 880, 527 N.Y.S.2d 611).   If a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483;  Mason v. Simmons, 139 A.D.2d 880, 527 N.Y.S.2d 611).

 Here, although the plaintiffs did not file a note of issue within the 90-day demand period, the facts negated any inference that they intended to abandon the action (see Davis v. Goodsell, 6 A.D.3d 382, 384, 774 N.Y.S.2d 568;  Martinisi v. Cornwall Hosp., 177 A.D.2d 549, 551, 576 N.Y.S.2d 150).   There was some activity by the plaintiffs' counsel to ascertain the status of a Chapter 7 bankruptcy proceeding involving the third-party defendant (hereinafter the bankruptcy proceeding) (see Sheridan v. Mid-Island Hosp., Inc., 9 A.D.3d 490, 781 N.Y.S.2d 366).   Moreover, the plaintiffs, who had filed a note of issue in 1998, attempted to file a second note of issue during the 90-day statutory period, but their attempt to do so was rejected by the clerk of the court.   Thus, the plaintiffs demonstrated that they did not intend to abandon this action (see Gadsden v. New York City Tr. Auth., 36 A.D.3d 658, 829 N.Y.S.2d 146;  Goldblum v. Franklin Munson Fire Dist., 27 A.D.3d 694, 815 N.Y.S.2d 593;  see also Jimenez v. Haros, 39 A.D.3d 437, 834 N.Y.S.2d 169;  Sheridan v. Mid-Island Hosp., Inc., 9 A.D.3d 490, 781 N.Y.S.2d 366).

Since the plaintiffs already had been granted summary judgment on the issue of liability, the merit of this action was established (see Lupoli v. Venus Labs., 264 A.D.2d 820, 695 N.Y.S.2d 598).   In light of the foregoing, the Supreme Court should have denied the defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

In addition, since the docket of the United States Bankruptcy Court for the Eastern District of New York demonstrated that the automatic bankruptcy stay in the bankruptcy proceeding previously had been lifted, the Supreme Court also should have granted the cross motion to vacate its stay of the trial on damages.

The defendants' remaining contentions are without merit.