| Bell v United Parcel Serv., Inc. |
| 2016 NY Slip Op 05110 [140 AD3d 1106] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| Vinson L. Bell, Appellant, v United ParcelService, Inc., Respondent, et al., Defendant. |
Georgaklis & Mallas, PLLC, Brooklyn, NY (Ficarra PLLC [Michele V.Ficarra], of counsel), for appellant.
David S. Kritzer & Associates, P.C., Smithtown, NY, for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Marber, J.), dated October 2, 2014, whichdenied his motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216,to restore the action to the active calendar, and to extend the time to file a note ofissue.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion, in effect, to vacate the dismissal of the action pursuant toCPLR 3216, to restore the action to the active calendar, and to extend the time to file anote of issue is granted.
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]; Di Simone v GoodSamaritan Hosp., 100 NY2d 632, 633 [2003]; Baczkowski v Collins Constr.Co., 89 NY2d at 504-505). While the Supreme Court is prohibited from dismissingan action based on neglect to proceed whenever the plaintiff has shown a justifiableexcuse for the delay in the prosecution of the action and a potentially meritorious causeof action (see CPLR 3216 [e]), a dual showing of justifiable excuse andmeritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal ofthe action (see Baczkowski v Collins Constr. Co., 89 NY2d at 503-505; Altman v Donnenfeld, 119AD3d 828 [2014]; Gordonv Ratner, 97 AD3d 634, 635 [2012]).
Here, the plaintiff's counsel affirmed that he never received a copy of the SupremeCourt's order dated June 3, 2014, which set the deadline for filing the note of issue. Theplaintiff promptly moved for relief shortly after learning that the case had been marked"disposed." Further, the plaintiff demonstrated a potentially meritorious cause of actionthrough the submission of his deposition transcript. Under these circumstances, theSupreme Court improvidently exercised its discretion in declining to excuse theplaintiff's failure to meet the deadline for filing a note of issue (see Gordon vRatner, 97 AD3d at 635; Kadyimov v Mackinnon, 82 AD3d 938, 938-939 [2011];Andelman v Berardi, 73AD3d 956, 956-957 [2010]; Klein v MTA-Long Is. Bus, 61 AD3d 722, 723 [2009]).Accordingly, the court should have granted the plaintiff's motion, in effect, to vacate thedismissal of the action pursuant to CPLR 3216, to restore the action to the activecalendar, and to extend the time to file a note of issue. Mastro, J.P., Dickerson, Austinand Roman, JJ., concur.