ANGAMARCA v. (And Third-Party Actions). (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Debra Silber, J.), dated April 20, 2017.  The order denied the defendants' motion pursuant to CPLR 3216 to dismiss the action for failure to prosecute.

ORDERED that the order is affirmed, with costs.

In May 2015, the plaintiff commenced this action against the defendants to recover damages for personal injuries.  The defendants served their separate answers on or about September 14, 2015.  On August 12, 2016, the defendants served a 90–day demand to resume prosecution.  When the plaintiff failed to comply, the defendants moved pursuant to CPLR 3216 to dismiss the action for failure to prosecute.  In an order dated April 20, 2017, the Supreme Court denied the motion.  The defendants appeal.

Where, as here, a plaintiff has been served with a 90–day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90–day period (see Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d 760, 67 N.Y.S.3d 264).  The plaintiff here failed to do either within the 90–day period.  Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90–day period, as well as a potentially meritorious cause of action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Bischoff v. Hoffman, 112 A.D.3d 659, 976 N.Y.S.2d 406).

It has been said that CPLR 3216 is “extremely forgiving” (Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 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 Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102;  Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d at 761, 67 N.Y.S.3d 264).  Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the defendants' motion pursuant to CPLR 3216 to dismiss the action.  The plaintiff provided a justifiable excuse for its delay in filing a note of issue and demonstrated a potentially meritorious cause of action.  Furthermore, there was no evidence of a pattern of persistent neglect or delay in prosecuting the action, or an intent to abandon the action (see Vera v. New York El. & Elec. Corp., 150 A.D.3d 927, 928, 55 N.Y.S.3d 114;  Altman v. Donnenfeld, 119 A.D.3d 828, 990 N.Y.S.2d 542;  Bischoff v. Hoffman, 112 A.D.3d at 660, 976 N.Y.S.2d 406;  Malcolm v. Rite Aid of N.Y., Inc., 100 A.D.3d 837, 954 N.Y.S.2d 587;  cf. Deutsche Bank Natl. Trust Co. v. Inga, 156 A.D.3d at 761, 67 N.Y.S.3d 264).

MASTRO, J.P., LEVENTHAL, SGROI and IANNACCI, JJ., concur.