FERRARA v. Long Island Siding Contractors, Ltd., third-party defendant second third-party defendant-respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Nicola FERRARA, et al., appellants, v. N.Y. & ATLANTIC RAILWAY CO., defendant third-party plaintiff-respondent, L.J. Industries, Inc., defendant second third-party plaintiff-respondent; Long Island Siding Contractors, Ltd., third-party defendant second third-party defendant-respondent.

Decided: January 31, 2006

A. GAIL PRUDENTI, P.J., HOWARD MILLER, WILLIAM F. MASTRO, and ROBERT J. LUNN, JJ. Zaslav & Auerbach, P.C., New York, N.Y. (H. Gary Zaslav and Allen H. Weiss of counsel), for appellants. Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (Ronald E. Joseph, James H. Rowland, and Christopher G. Fretel of counsel), for defendant third-party plaintiff-respondent. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, N.Y. (Norman H. Dachs of counsel), for defendant second third-party plaintiff-respondent. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (William T. McCaffery of counsel), for third-party defendant second third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schulman, J.), dated July 12, 2004, which granted the separate motions of the defendant third-party plaintiff and the defendant second third-party plaintiff pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute, and granted that branch of the motion of the third-party defendant second third-party defendant which was pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the separate motions of the defendant third-party plaintiff and the defendant second third-party plaintiff are denied, that branch of the motion of the third-party defendant second third-party defendant which was pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute is denied, and the complaint is reinstated.

 Under the circumstances presented, the Supreme Court improvidently exercised its discretion in dismissing the complaint pursuant to CPLR 3216 for failure to prosecute.  CPLR 3216 is, “by its terms, ‘extremely forgiving’ 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, quoting Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503-505, 655 N.Y.S.2d 848, 678 N.E.2d 460;  see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 768 N.Y.S.2d 735, 800 N.E.2d 1102).   The statute prohibits the Supreme Court from dismissing the complaint based on failure to prosecute where the plaintiff demonstrates a justifiable excuse for his or her delay, as well as a meritorious cause of action.   However, such a “dual showing” is not strictly necessary for the plaintiff to avoid dismissal (Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568).

A plaintiff's failure to comply with a 90-day notice issued pursuant to CPLR 3216(b)(3) should, in a proper exercise of discretion, be excused “under a variety of circumstances,” including, inter alia, where a defendant, after having served the notice, demands additional pretrial discovery from the plaintiff (Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568).   In this case, for example, after the 90-day notice was issued (and after the 90-day period had passed) the defendant third-party plaintiff, N.Y. & Atlantic Railway Co., moved to compel the plaintiffs to furnish certain disclosure.   In addition, the third-party defendant second third-party defendant, Long Island Siding Contractors, Ltd., was not impleaded into the action until after the 90-day notice issued, and did not join issue until roughly three months after the note of issue deadline, and then pursued disclosure against the defendants.   Moreover, the plaintiffs' conduct in this litigation, including initiating motion practice after the note of issue deadline, negated any intent to abandon the action (see Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568).

We conclude that the circumstances presented in this case are not akin to “those where CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution, and lack of any tenable excuse for such delay” (Davis v. Goodsell, supra at 384, 774 N.Y.S.2d 568 [citations and internal quotation marks omitted] ).

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