| Lauri v Freeport Union Free School Dist. |
| 2010 NY Slip Op 08905 [78 AD3d 1130] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Teri Lauri, an Infant, by Her Mother and Natural Guardian, DonnaLauri, et al., Respondents, v Freeport Union Free School District et al.,Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Nassau County (Mahon, J.), dated October 9, 2009, which deniedtheir motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, andgranted those branches of the plaintiffs' cross motion which were to extend their time to serveand file a note of issue, and to vacate the defendants' 90-day notice.
Ordered that the order is affirmed, with costs.
CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co.,89 NY2d 499, 503 [1997]), which "never requires, but merely authorizes, the Supreme Court todismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis vGoodsell, 6 AD3d 382, 383 [2004]; see Di Simone v Good Samaritan Hosp., 100NY2d 632, 633 [2003]; Gibson v Fakheri, 77 AD3d 619 [2010]; Ferrera vEsposit, 66 AD3d 637, 638 [2009]). Moreover, the statute prohibits the Supreme Court fromdismissing a complaint based on failure to prosecute whenever the plaintiff has shown ajustifiable excuse for the delay and the existence of a potentially meritorious cause of action(see CPLR 3216 [e]; Di Simone v Good Samaritan Hosp., 100 NY2d at 633;Gibson v Fakheri, 77 AD3d 619 [2010]; Ferrera v Esposit, 66 AD3d at 638).
Here, the plaintiffs presented a justifiable excuse for both their failure to timely respond tothe defendants' 90-day notice and their delay in prosecuting this action through the affirmation oftheir attorney, who explained in detail that the delay was the result of a combination of both lawoffice failure and his own health and personal issues (see Di Simone v Good SamaritanHosp., 100 NY2d at 633-634; Goldstein v Meadows Redevelopment Co Owners Corp.I, 46 AD3d 509, 510-511 [2007]; Amato v Commack Union Free School Dist., 32AD3d 807, 808 [2006]). Furthermore, the plaintiffs' submissions were sufficient to demonstratethat they have a potentially meritorious cause of action against the defendants (see Amato vCommack Union Free School Dist., 32 AD3d at 808; Driever v Spackenkill Union FreeSchool Dist., 20 AD3d 384, 385 [2005]). Accordingly, the Supreme Court properly deniedthe defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute,and granted those [*2]branches of the plaintiffs' cross motionwhich were to extend their time to serve and file a note of issue, and to vacate the defendants'90-day notice. Skelos, J.P., Balkin, Eng and Austin, JJ., concur.