| Altman v Donnenfeld |
| 2014 NY Slip Op 05402 [119 AD3d 828] |
| July 23, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Stewart N. Altman et al., Respondents, v EricD. Donnenfeld et al., Appellants, et al., Defendant. |
Martin Clearwater & Bell, LLP, New York, N.Y. (Stewart G. Milch, John L.A.Lyddane, and Steven A. Lavietes of counsel), for appellants.
Kaye & Lenchner, Mineola, N.Y. (Corey B. Kaye of counsel), forrespondents.
In an action to recover damages for medical malpractice, the defendants Eric D.Donnenfeld and Opthalmic Consultants of Long Island appeal, as limited by their brief,from so much an order of the Supreme Court, Nassau County (Winslow, J.), entered May31, 2013, as denied their motion pursuant to CPLR 3216 to dismiss the complaint insofaras asserted against them for failure to prosecute.
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 3216 is "extremely forgiving" (Baczkowski v Collins Constr. Co., 89NY2d 499, 503 [1997]) in that it "never requires, but merely authorizes, the SupremeCourt to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect toproceed" (Davis v Goodsell,6 AD3d 382, 383 [2004]; see CPLR 3216 [a], [e]; Baczkowski v CollinsConstr. Co., 89 NY2d at 504-505; Kadyimov v Mackinnon, 82 AD3d 938 [2011]). While thestatute prohibits the Supreme Court from dismissing an action based on neglect toproceed whenever the plaintiff has shown a justifiable excuse for the delay in theprosecution of the action and a meritorious cause of action (see CPLR 3216 [e];Picot v City of New York,50 AD3d 757, 758 [2008]), such a dual showing is not strictly necessary to avoiddismissal of the action (see Baczkowski v Collins Constr. Co., 89 NY2d at503-505; Gordon v Ratner,97 AD3d 634, 635 [2012]; Kadyimov v Mackinnon, 82 AD3d 938 [2011]; Davis vGoodsell, 6 AD3d at 383-384).
Here, upon receipt of the appellants' 90-day notice, the respondents did not file anote of issue within the 90-day period. However, the appellants refused certain requeststo schedule a continued deposition of the injured respondent and, after the 90-day noticewas served, both parties demonstrated an intent to proceed with discovery. Further, thereis no evidence that the appellants were prejudiced by the minimal delay involved in thiscase or that there was a pattern of persistent neglect and delay in prosecuting the action,or any intent to abandon the action. Under these circumstances, the Supreme Courtprovidently exercised its discretion in excusing the respondents' failure to meet thedeadline for filing the note of issue (see Gordon v Ratner, 97 AD3d at 635; Kadyimov v Mackinnon, 82AD3d 938 [2011]; Ferrerav Esposit, 66 AD3d 637, 638 [2009]; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694,695 [2006]; Davis v Goodsell, 6 AD3d at 384). Chambers, J.P., Lott, Cohen andDuffy, JJ., concur.