| Kadyimov v Mackinnon |
| 2011 NY Slip Op 01977 [82 AD3d 938] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Inna Kadyimov, Respondent, v Francis Mackinnon et al.,Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Palmieri, J.), dated July 29, 2010, which granted theplaintiff's motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, restorethe action to the trial calendar, and extend the time to file a note of issue.
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 v Goodsell, 6 AD3d 382,383 [2004]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]; Gibson v Fakheri, 77 AD3d 619[2010]; Ferrera v Esposit, 66 AD3d637, 638 [2009]). Although the statute prohibits the Supreme Court from dismissing acomplaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse forthe delay and the existence of a potentially meritorious cause of action, "such a dual showing isnot strictly necessary in order for the plaintiff to escape such a dismissal" (Davis vGoodsell, 6 AD3d at 384; see Baczkowski v Collins Constr. Co., 89 NY2d at503-504; Gibson v Fakheri, 77AD3d 619 [2010]; Ferrera v Esposit, 66 AD3d at 638).
Here, the plaintiff attempted to file her note of issue 11 days beyond the deadline set by theSupreme Court's certification order, and moved for relief shortly after learning that the case hadbeen marked "disposed." Moreover, the defendants did not claim to have been prejudiced by theminimal delay involved in this case. Furthermore, there is no evidence in the record of a patternof persistent neglect and delay in prosecuting the action, or of any intent to abandon the action.Under these circumstances, the Supreme Court providently exercised its discretion in excusingthe plaintiff's failure to meet the deadline for filing the note of issue (see Ferrera vEsposit, 66 AD3d at 638; Zito vJastremski, 35 AD3d 458, 459 [2006]; Diaz v Yuan, 28 AD3d 603 [2006]). Skelos, J.P., Covello, Eng,Chambers and Sgroi, JJ., concur.