CPLR R. 3216 Want of prosecution — A “extremely forgiving statute”

The Supreme Court did not improvidently exercise its discretion in granting that [*2]branch
of the plaintiffs' motion which was to vacate the dismissal of the
action pursuant to CPLR 3216, and restore the action to the trial
calendar. CPLR 3216 is an "extremely forgiving statute" which "never
requires, but merely authorizes, the Supreme Court to dismiss a
plaintiff's action based on the plaintiff's unreasonable neglect to
proceed" (Davis v Goodsell, 6 AD3d 382, 383; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633; Primiano v Ginsberg, 55 AD3d 709; Zito v Jastremski, 35 AD3d 458; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d 753,
754). The statute prohibits the Supreme Court from dismissing a
complaint based on failure to prosecute whenever the plaintiff has
shown a justifiable excuse for the delay and the existence of a
meritorious cause of action (see CPLR 3216[e]; Di Simone v Good Samaritan Hosp., 100 NY2d at 633; Zito v Jastremski, 35 AD3d at 459; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694).

Here, the plaintiffs moved to vacate the order dismissing the
action approximately two months after it had been issued, explaining
that they had been unable to file a timely note of issue because the
defendants' response to several significant discovery demands was still
outstanding. Moreover, the plaintiffs submitted, inter alia, their
deposition testimony to establish the existence of a meritorious cause
of action, and it is clear from the record that they exhibited no
intent to abandon the action. Under these circumstances, the court
properly vacated the dismissal of the action, and restored it to the
trial calendar (see Lubov v Welikson, 36 AD3d 673, 674; Zito v Jastremski, 35 AD3d at 459; Diaz v Yuan, 28 AD3d 603; Tolmasova v Umarova, 22 AD3d 570; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694, 695; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d at 754-755; Davis v Goodsell, 6 AD3d at 384).