AMATO v. COMMACK UNION FREE SCHOOL DISTRICT (2006)

In an action to recover damages for personal injuries, etc., the defendant Commack Union Free School District appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated March 8, 2006, which denied its motion to dismiss the complaint insofar as asserted against it pursuant to CPLR 3216 for want of prosecution and pursuant to CPLR 3126(a)(3) for failure to comply with a preliminary conference order.

ORDERED that the order is affirmed, with costs.

 The appellant served the plaintiffs with a 90-day notice to resume prosecution of the action pursuant to CPLR 3216.   Once the 90-day notice was received, the plaintiffs were required to file a note of issue in compliance with the notice or move, before the default date, either to vacate the notice or to extend the 90-day period (see Chaudhry v. Ziomek, 21 A.D.3d 922, 924, 801 N.Y.S.2d 603;  Allen v. Makhnevich, 15 A.D.3d 425, 426, 789 N.Y.S.2d 450;  Brady v. Benenson Capital Co., 2 A.D.3d 382, 767 N.Y.S.2d 787).   The plaintiffs did neither.   Thus, in opposition to the appellant's motion to dismiss the complaint insofar as asserted against it, the plaintiffs were required to provide a justifiable excuse for their delay and to demonstrate a meritorious cause of action (see CPLR 3216[e];  Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;  Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230;  Aguilar v. Knutson, 296 A.D.2d 562, 747 N.Y.S.2d 517).

 The plaintiffs presented a justifiable excuse for their delay in prosecuting this action based upon the combination of their attorney's illness (see Low Surgical & Med. Supply v. McAfee, 15 A.D.3d 547, 548, 789 N.Y.S.2d 896;  cf. Civello v. Grossman, 192 A.D.2d 636, 596 N.Y.S.2d 464;  Chery v. Anthony, 156 A.D.2d 414, 416-417, 548 N.Y.S.2d 535;  Barnes v. Utility Lines, 12 A.D.2d 524, 207 N.Y.S.2d 735) and law office failure that was not willful or deliberate (see CPLR 2005;  Storchevoy v. Blinderman, 303 A.D.2d 672, 673, 757 N.Y.S.2d 82;  Wechsler v. First Unum Life Ins. Co., 295 A.D.2d 340, 341, 742 N.Y.S.2d 668;  Reyes v. Ross, 289 A.D.2d 554, 555, 735 N.Y.S.2d 198).   Furthermore, the plaintiffs' submissions were sufficient to demonstrate that they have a potentially meritorious cause of action against the appellant (see Holtslander v. Whalen & Sons, 70 N.Y.2d 962, 525 N.Y.S.2d 793, 520 N.E.2d 512, modifg. on concurring and dissenting op. of Levine, J., at 126 A.D.2d 917, 919-920, 510 N.Y.S.2d 937;  Greene v. Toys “R” Us, 292 A.D.2d 568, 739 N.Y.S.2d 437;  cf. Diven v. Village of Hastings-On-Hudson, 156 A.D.2d 538, 539, 548 N.Y.S.2d 807).   Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3216 for want of prosecution.

Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126(a)(3) for failure to comply with a preliminary conference order.   The plaintiffs' failure to timely provide discovery pursuant to that order was not willful and contumacious (see Piche v. Greenpoint Sav. Bank, 21 A.D.3d 886, 800 N.Y.S.2d 510;  Felipe v. 2820 W. 36th St. Realty Corp., 7 A.D.3d 483, 484, 775 N.Y.S.2d 572).