Opinion
2015-00100, Index No. 2659/11.
10-07-2015
Misun LEE, appellant, v. Cyrus K. RAD, et al., respondents.
John I. Kim, Flushing, N.Y., for appellant. Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent Cyrus K. Rad. Martin, Fallon & Mullé, Huntington, N.Y. (Michael P. Ross of counsel), for respondent Kayhan Sarab.
John I. Kim, Flushing, N.Y., for appellant.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent Cyrus K. Rad.
Martin, Fallon & Mullé, Huntington, N.Y. (Michael P. Ross of counsel), for respondent Kayhan Sarab.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Opinion In a consolidated action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), entered October 16, 2014, as granted the separate motions of the defendants Cyrus K. Rad and Kayhan Sarab pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them for failure to prosecute.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with one bill of costs, and the separate motions of the defendants Cyrus K. Rad and Kayhan Sarab pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them are denied.
CPLR 3216 is “extremely forgiving” (Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ) in that it “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 A.D.3d 382, 383–384, 774 N.Y.S.2d 568 ; see CPLR 3216[a], [e] ; Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102 ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ). 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, either to vacate the demand or extend the 90–day period (see Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698 ; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395 ; Brown v. World Fin. Props., 306 A.D.2d 303, 304, 760 N.Y.S.2d 668 ). In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see CPLR 3216[e] ; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237 ; Serby v.
Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119 ; Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230 ).
Here, although the plaintiff did not file a note of issue within the 90–day demand period, her conduct negated any inference that she intended to abandon the action (see Davis v. Goodsell, 6 A.D.3d at 384, 774 N.Y.S.2d 568 ). In opposition to the defendants' separate motions, the plaintiff promptly cross-moved to strike the answer of the defendant Kayhan Sarab for his willful failure to appear for a court-ordered deposition. The plaintiff established that, due to an unresolved discovery dispute, she was unable to timely file a note of issue (see Altman v. Donnenfeld, 119 A.D.3d 828, 990 N.Y.S.2d 542 ; Klein v. MTA–Long Is. Bus, 61 A.D.3d 722, 723, 877 N.Y.S.2d 195 ; Lubov v. Welikson, 36 A.D.3d 673, 674, 826 N.Y.S.2d 583 ; Betty v. City of New York, 12 A.D.3d 472, 473, 784 N.Y.S.2d 621 ; Davis v. Goodsell, 6 A.D.3d 382, 774 N.Y.S.2d 568 ). Furthermore, since Sarab contributed to the plaintiff's inability to file a timely note of issue in the proper form, the plaintiff was not required to demonstrate a potentially meritorious cause of action (see Lubov v. Welikson, 36 A.D.3d at 674, 826 N.Y.S.2d 583 ; Tu Ying Chen v. Nash, 266 A.D.2d 279, 698 N.Y.S.2d 511 ; Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 548, 690 N.Y.S.2d 643 ). Accordingly, the defendants' separate motions to dismiss the complaint insofar as asserted against each of them should have been denied.