| Klein v MTA-Long Is. Bus |
| 2009 NY Slip Op 02974 [61 AD3d 722] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Elliot Klein et al., Respondents, v MTA-Long Island Buset al., Appellants. |
—[*1] Eiges, Goldblum & Berkowitz, LLP, New York, N.Y. (Robert J. Berkowitz of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams,J.), entered October 15, 2007, as granted those branches of the plaintiffs' motion which were, ineffect, to vacate the dismissal of the action pursuant to CPLR 3216 and restore the action to thetrial calendar, and for summary judgment on the issue of liability, and (2) from an order of thesame court entered April 28, 2008, which denied their motion, inter alia, for leave to renew theiropposition to that branch of the plaintiffs' motion which was for summary judgment on the issueof liability.
Ordered that the order entered October 15, 2007 is modified, on the law, by deleting theprovision thereof granting that branch of the plaintiffs' motion which was for summary judgmenton the issue of liability, and substituting therefor a provision denying that branch of the motion;as so modified, the order entered October 15, 2007 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the appeal from the order entered April 28, 2008 is dismissed as academic,without costs or disbursements, in light of the determination on the appeal from the order enteredOctober 15, 2007.
The Supreme Court did not improvidently exercise its discretion in granting that [*2]branch of the plaintiffs' motion which was to vacate the dismissalof the action pursuant to CPLR 3216, and restore the action to the trial calendar. CPLR 3216 isan "extremely forgiving statute" which "never requires, but merely authorizes, the SupremeCourt to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382,383 [2004]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]; Primiano v Ginsberg, 55 AD3d709 [2008]; Zito v Jastremski,35 AD3d 458 [2006]; Ferrara vN.Y. & Atl. Ry. Co., 25 AD3d 753, 754 [2006]). The statute prohibits the SupremeCourt from dismissing a complaint based on failure to prosecute whenever the plaintiff hasshown a justifiable excuse for the delay and the existence of a meritorious cause of action(see CPLR 3216 [e]; Di Simone v Good Samaritan Hosp., 100 NY2d at 633;Zito v Jastremski, 35 AD3d at 459; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694 [2006]).
Here, the plaintiffs moved to vacate the order dismissing the action approximately twomonths after it had been issued, explaining that they had been unable to file a timely note ofissue because the defendants' response to several significant discovery demands was stilloutstanding. Moreover, the plaintiffs submitted, inter alia, their deposition testimony to establishthe existence of a meritorious cause of action, and it is clear from the record that they exhibitedno intent to abandon the action. Under these circumstances, the court properly vacated thedismissal of the action, and restored it to the trial calendar (see Lubov v Welikson, 36 AD3d 673, 674 [2007]; Zito vJastremski, 35 AD3d at 459; Diaz vYuan, 28 AD3d 603 [2006]; Tolmasova v Umarova, 22 AD3d 570 [2005]; Goldblum v Franklin Munson Fire Dist.,27 AD3d 694, 695 [2006]; Ferrara v N.Y.& Atl. Ry. Co., 25 AD3d at 754-755;Davis v Goodsell, 6 AD3d at 384).
However, upon vacating the dismissal, the court should not have granted that branch of theplaintiffs' motion which was for summary judgment on the issue of liability. In support of thatbranch of their motion, the plaintiffs failed to present sufficient evidentiary proof to demonstratethe absence of any material issue of fact as to whether the accident was caused by the negligentactions of the defendants, and whether the injured plaintiff sustained a serious injury within themeaning of Insurance Law § 5102 (d) (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851 [1985]).
In view of our determination, we need not reach the defendants' remaining contentions.Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.