| Atterberry v Serlin & Serlin |
| 2011 NY Slip Op 05439 [85 AD3d 949] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Kathryn M. Atterberry, Appellant, v Serlin & Serlin et al.,Respondents. (And Another Title.) |
—[*1] Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan of counsel), forrespondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Lally, J.), dated August 5, 2010, which denied her motion tovacate the dismissal of the action pursuant to CPLR 3216 and to extend her time to file a note ofissue.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3216 and toextend the time to file a note of issue is granted.
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 anaction based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for thedelay and the existence of a potentially meritorious cause of action, "such a dual showing is notstrictly necessary in order for the plaintiff to escape such a dismissal" (Davis v Goodsell,6 AD3d at 384; see Baczkowski v Collins Constr. Co., 89 NY2d at 503-504; Gibson v Fakheri, 77 AD3d 619[2010]; Ferrera v Esposit, 66 AD3d at 638).
Here, the plaintiff attempted to file her note of issue 10 days beyond the deadline set by theSupreme Court's certification order, and the defendants did not claim that they have beenprejudiced by the minimal delay (seeKadyimov v Mackinnon, 82 AD3d 938 [2011]). In addition, the delay in filing a note ofissue was attributable to law office failure, and the plaintiff proffered both a reasonable excusefor her further two-month delay in making this motion and a potentially meritorious cause ofaction (see CPLR 2005; Lauri vFreeport Union Free School Dist., 78 AD3d 1130 [2010]; Goldstein v Meadows Redevelopment CoOwners Corp. I, 46 AD3d 509, 510 [2007]; Diaz v Yuan, [*2]28 AD3d 603 [2006]). Furthermore, there is no evidence in therecord of a pattern of persistent neglect and delay in prosecuting the action, or of any intent toabandon the action. Under these circumstances, the plaintiff's motion to vacate the dismissal ofthe action pursuant to CPLR 3216 and to extend her time to file a note of issue should have beengranted (see Kadyimov vMackinnon, 82 AD3d 938 [2011]; Ferrera v Esposit, 66 AD3d at 638; Anonymous v Duane Reade, Inc., 49AD3d 479 [2008]; Diaz vYuan, 28 AD3d 603 [2006]). Mastro, J.P., Florio, Leventhal, Belen and Cohen, JJ.,concur.