From Casetext: Smarter Legal Research

Matter of Simmons v. McSimmons, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1999
261 A.D.2d 547 (N.Y. App. Div. 1999)

Opinion

May 17, 1999

Appeal from the Supreme Court, Kings County (Shaw, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

It is well established that in order to defeat a motion to dismiss a pleading for failure to prosecute, the party upon whom a demand to file a note of issue is served must demonstrate a justifiable excuse for the failure to comply with the demand and a meritorious claim ( see, CPLR 3216 [e]; Dick v. Samaritan Hosp., 115 A.D.2d 917). Pursuant to 22 NYCRR 202.21 (a) and (b), a note of issue must be accompanied by a certificate of readiness, which must state that all discovery proceedings known to be necessary are complete and that there are no outstanding requests for discovery. Here, discovery was not complete for reasons which, at least in part, were attributable to the moving parties. Inasmuch as the petitioner could not file a note of issue and certificate of readiness in the proper form, she had a justifiable excuse for the delay and dismissal was not warranted ( see, Markarian v. Hundert, 180 A.D.2d 780; Peterwanda, Inc. v. Birnbaum, 79 A.D.2d 1103).

Moreover, where, as here, the moving party contributed to the delay, a motion to dismiss may be denied without requiring an affidavit of merit ( see, Schoenhals v. Kissing Bridge Corp., 96 A.D.2d 710). In any event, the petitioner submitted a verified petition, which was the equivalent of an affidavit of merit ( see, CPLR 105 [u], along with deposition testimony and other documents, which were sufficient to establish that she had a meritorious claim ( see, Dick v. Samaritan Hosp., 115 A.D.2d 917, supra; Gibson v. D'Avanzo, 99 A.D.2d 766). Under these circumstances, the Supreme Court did not improvidently exercise its discretion by denying the motion to dismiss the petition.

Bracken, J. P., Thompson, Goldstein and Florio, JJ., concur.


Summaries of

Matter of Simmons v. McSimmons, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 17, 1999
261 A.D.2d 547 (N.Y. App. Div. 1999)
Case details for

Matter of Simmons v. McSimmons, Inc.

Case Details

Full title:In the Matter of HATTIE SIMMONS, Respondent v. McSIMMONS, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 17, 1999

Citations

261 A.D.2d 547 (N.Y. App. Div. 1999)
690 N.Y.S.2d 643

Citing Cases

Zito v. Jastremski

While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever…

Santospirito v. Duca

Ordered that the order is affirmed, without costs or disbursements. The Supreme Court providently exercised…