So is CPLR R. 3216

CPLR R. 3216

Kadyimov v Mackinnon, 82 AD3d 938] (App. Div., 2nd 2011)

CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), 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 [2004]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]; Gibson v Fakheri, 77 AD3d 619 [2010]; Ferrera v Esposit, 66 AD3d 637, 638 [2009]). Although 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 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 [2010]; Ferrera v Esposit, 66 AD3d at 638). 

Here, the plaintiff attempted to file her note of issue 11 days beyond the deadline set by the Supreme Court's certification order, and moved for relief shortly after learning that the case had been marked "disposed." Moreover, the defendants did not claim to have been prejudiced by the minimal delay involved in this case. 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 Supreme Court providently exercised its discretion in excusing the plaintiff's failure to meet the deadline for filing the note of issue (see Ferrera v Esposit, 66 AD3d at 638; Zito v Jastremski, 35 AD3d 458, 459 [2006]; Diaz v Yuan, 28 AD3d 603 [2006]).

Gagnon v Campbell, 2011 NY Slip Op 06092 (2nd Dept. 2011)

The defendant served the plaintiff's attorney with a valid 90-day demand pursuant to CPLR 3216 on January 9, 2008. Upon receipt of the 90-day demand, the plaintiff was required to comply with it either by serving and filing a timely note of issue or by moving, before the default date, to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d 1155, 1156; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). Having failed to pursue any of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876; Picot v City of New York, 50 AD3d 757, 758; McKinney v Corby, 295 AD2d at 581; Flomenhaft v Baron, 281 AD2d 389). In renewing her opposition to the defendant's motion to dismiss the complaint pursuant to CPLR 3216, the plaintiff failed to offer new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2]; Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). The plaintiff failed to submit any medical evidence demonstrating that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Louis v MTA Long Is. Bus Co., 44 AD3d 628; Parks v Miclette, 41 AD3d 1107, 1110; Berktas v McMillian, 40 AD3d 563, 563-564). Therefore, the plaintiff failed [*2]to demonstrate that she has a potentially meritorious cause of action.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s