CPLR R. 3216 Want of prosecution
CPLR § 1015 Substitution upon death
CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal
Atterberry v Serlin & Serlin, 2011 NY Slip Op 05439 (App. Div., 2nd 2011)
CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), 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; Gibson v Fakheri, 77 AD3d 619; Ferrera v Esposit, 66 AD3d 637, 638). Although the statute prohibits the Supreme Court from dismissing an action based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, "such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" (Davis v Goodsell, 6 AD3d at 384; see Baczkowski v Collins Constr. Co., 89 NY2d at 503-504; Gibson v Fakheri, 77 AD3d 619; Ferrera v Esposit, 66 AD3d at 638).
Here, the plaintiff attempted to file her note of issue 10 days beyond the deadline set by the Supreme Court's certification order, and the defendants did not claim that they have been prejudiced by the minimal delay (see Kadyimov v MacKinnon, 82 AD3d 938). In addition, the delay in filing a note of issue was attributable to law office failure, and the plaintiff proffered both a reasonable excuse for her further two-month delay in making this motion and a potentially meritorious cause of action (see CPLR 2005; Lauri v Freeport Union Free School Dist., 78 AD3d 1130; Goldstein v Meadows Redevelopment Co Owners Corp. I, 46 AD3d 509, 510; Diaz v Yuan, 28 AD3d 603). Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of any intent to abandon the action. Under these circumstances, the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3216 and to extend her time to file a note of issue should have been granted (see Kadyimov v MacKinnon, 82 AD3d 938; Ferrera v Esposit, 66 AD3d at 638; Anonymous v Duane Reade, Inc., 49 AD3d 479; Diaz v Yuan, 28 AD3d 603).
Sanders v New York City Hous. Auth., 2011 NY Slip Op 05479 (App. Div., 2nd 2011)
In light of the approximate three-year delay between the death of the plaintiff and the appointment of the appellant as the administratrix of the plaintiff's estate, the further three-year delay between the appointment of the appellant as administratrix and the underlying motion, inter alia, seeking her substitution in this action, the failure to proffer any excuse for the delays, and the failure to show that the action was potentially meritorious, that branch of the appellant's motion which was for substitution was properly denied (see CPLR 1021; Reed v Grossi, 59 AD3d 509, 511; McDonnell v Draizin, 24 AD3d 628; Washington v Min Chung Hwan, 20 AD3d 303, 305).
Furthermore, that branch of the appellant's motion which was to vacate the dismissal of the action pursuant to CPLR 3216 also was properly denied, as she failed to demonstrate a justifiable excuse for the plaintiff's delay in properly responding to the 90-day notice and a potentially meritorious cause of action (see CPLR 3216[e]; Fenner v County of Nassau, 80 AD3d 555, 556; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784; Matter of Bloom v Lubow, 45 AD3d 680; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Sortino v Fisher, 20 AD2d 25, 31-32).