“CPLR 3216 ‘is extremely forgiving of litigation delay'”

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2010 NY Slip Op 06603 (App. Div., 1st 2010)

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" (Primiano v Ginsberg, 55 AD3d 709, 709 [2008]; see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006], lv denied 8 NY3d 805 [2007]). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]). Furthermore, CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), and "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" (Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [2009]).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action (see e.g. Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" (Salch v Paratore, 60 NY2d 851, 852-53 [1983]).

All concur except Gonzalez, P.J. and Catterson, J. who dissent in a [*2]memorandum by Catterson, J. as follows:

 

CATTERSON, J. (dissenting)

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co. (89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997)) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements – filing the note of issue or tendering a justifiable excuse for not so doing — with which the plaintiff in this case failed to comply.

Make sure to click on the case to read the remainder of the dissent.  The bold is mine.

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