| Gibson v Fakheri |
| 2010 NY Slip Op 07141 [77 AD3d 619] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Diane Gibson, Respondent, v Stephen Fakheri, M.D.,Appellant. |
—[*1] Cophen E. Sears III, Mt. Sinai, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), enteredNovember 18, 2009, as denied that branch of his motion which was pursuant to CPLR 3216 to dismissthe complaint for failure to prosecute.
Ordered that order is affirmed insofar as appealed from, with costs.
CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89NY2d 499, 503 [1997]), which "never requires, but merely authorizes, the Supreme Court to dismiss aplaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382, 383[2004]). The statute prohibits the Supreme Court from dismissing a complaint based on failure toprosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of apotentially meritorious cause of action (seeFerrera v Esposit, 66 AD3d 637, 638 [2009]). However, "such a dual showing is not strictlynecessary in order for the plaintiff to escape such a dismissal" (Davis v Goodsell, 6 AD3d at384; see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d at 503-505).
Here, the Supreme Court providently exercised its discretion in excusing the plaintiff's failure tocomply with the defendant's 90-day notice demanding the filing of a note of issue (see CPLR3216 [b] [3]). The record establishes, inter alia, that the plaintiff did not intend to abandon the action asshown by her service of a discovery demand prior to the 90-day notice and her request for apreliminary conference subsequent to the defendant's service of the 90-day notice, at which theSupreme Court imposed a discovery schedule and provided for the filing of a note of issue andcertificate of readiness pursuant to further order of the court. Accordingly, the Supreme Court properlydenied that branch of the defendant's motion which was pursuant to CPLR 3216 to dismiss thecomplaint for failure to prosecute (see Zito vJastremski, 35 AD3d 458, 459 [2006]; Davis v Goodsell, 6 AD3d at 384). Skelos,J.P., Santucci, Angiolillo, Hall and Roman, JJ., concur.