| Gordon v Ratner |
| 2012 NY Slip Op 05497 [97 AD3d 634] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Mark Gordon et al., Appellants, v Scott Ratner, M.D., etal., Respondents. |
—[*1] Bower Monte & Greene, P.C., New York, N.Y. (Dylan Braverman and Anina Monte ofcounsel), for respondents Scott Ratner, Andrew Berke, J. Jane Cao, and Scott J. Sherman. Charles E. Kutner, LLP, New York, N.Y. (Patrick Mevs of counsel), for respondent St.Francis Hospital.
In an action to recover damages for medical malpractice, the plaintiffs appeal (1), as limitedby their brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), enteredMarch 25, 2011, as denied their motion to vacate the dismissal of the action pursuant to CPLR3216, to restore the action to the pretrial calendar, and to set a new deadline for the filing of thenote of issue, and (2) from an order of the same court entered August 5, 2011, which denied theirmotion, in effect, for leave to reargue the prior motion.
Ordered that the order entered March 25, 2011, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, the plaintiffs' motion to vacate the dismissal of the actionpursuant to CPLR 3216, to restore the action to the pretrial calendar, and to set a new deadlinefor the filing of the note of issue is granted, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings consistent herewith; and it is further,
Ordered that the appeal from the order entered August 5, 2011, is dismissed, as no appeal liesfrom an order denying a motion for leave to reargue and, in any event, the appeal from the orderentered August 5, 2011, has been rendered academic in light of our determination on the appealfrom the order entered March 25, 2011; and it is further,
Ordered that the plaintiffs are awarded one bill of costs payable by the defendants appearingseparately and filing separate briefs.
"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' " (Kadyimov v [*2]Mackinnon, 82 AD3d 938, 938 [2011], quoting Davis v Goodsell, 6 AD3d 382,383 [2004]). Although the statute prohibits the Supreme Court from dismissing a complaintbased on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delayand the existence of a potentially meritorious cause of action, such a dual showing is not strictlynecessary in order for a plaintiff to escape such a dismissal (see Kadyimov v Mackinnon,82 AD3d at 938-939).
Under the circumstances of this case, including the minimal three-day delay in filing the noteof issue, the excuse of law office failure which the Supreme Court properly accepted asreasonable, the fact that the defendants did not claim any prejudice, and the lack of evidence of apattern of persistent neglect and delay in prosecuting the action or of any intent to abandon theaction, the Supreme Court improvidently exercised its discretion in declining to excuse theplaintiffs' failure to meet the deadline for filing the note of issue (id. at 939; see Ferrera v Esposit, 66 AD3d637, 638 [2009]; Zito vJastremski, 35 AD3d 458 [2006]; Diaz v Yuan, 28 AD3d 603 [2006]; cf. Sicoli v Sasson, 76 AD3d1002, 1003-1004 [2010]; Nowell vNYU Med. Ctr., 55 AD3d 573 [2008]). Accordingly, the Supreme Court should havegranted the plaintiffs' motion to vacate the dismissal of the action pursuant to CPLR 3216, torestore the action to the pretrial calendar, and to set a new deadline for the filing of the note ofissue. Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.
Motion by the defendants Scott Ratner, Andre Berke, J. Jane Cao, and Scott Sherman onappeals from two orders of the Supreme Court, Nassau County, entered March 25, 2011, andAugust 5, 2011, respectively, inter alia, to dismiss the appeal from the order entered August 5,2011. By decision and order on motion of this Court dated December 15, 2011, that branch of themotion which is to dismiss the appeal from the order entered August 5, 2011, was held inabeyance and was referred to the panel of Justices hearing the appeals for determination upon theargument or submission of the appeals.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which is to dismiss the appeal from the order enteredAugust 5, 2011, is denied as academic in light of our determination of the appeal from that order.Dillon, J.P., Eng, Austin and Sgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op30813(U).]