Opinion
2012-09-28
Scott WOODWARD, Plaintiff–Respondent, v. Thomas M. CHAPMAN, et al., Defendants, Carol A. Conklin and Terry E. Reed, Defendants–Appellants.
Thomas P. Durkin, Rochester, for Defendants–Appellants.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries that he allegedly sustained as the result of two motor vehicle accidents. Plaintiff alleged that, in the accident that occurred on April 7, 2004, Terry E. Reed, who was driving a vehicle owned by Carol A. Conklin with her permission (collectively, defendants), negligently operated his vehicle and collided head-on with plaintiff's vehicle, causing plaintiff to sustain a serious injury within the meaning of Insurance Law § 5102(d). Supreme Court did not abuse its discretion in denying defendants' motion to dismiss the complaint against them pursuant to CPLR 3216, for failure to prosecute. Although defendants met their initial burden on the motion, in opposition thereto plaintiff established a justifiable excuse for the delay in filing the note of issue by submitting evidence that his attorney was in active discussion with the attorneys for defendants about mediation ( see Guenther v. Wilson Mem. Hosp., 93 A.D.2d 957, 958, 463 N.Y.S.2d 89,lv. denied60 N.Y.2d 553, 467 N.Y.S.2d 1027, 454 N.E.2d 940,rearg. denied60 N.Y.2d 861, 470 N.Y.S.2d 1026, 458 N.E.2d 386). In addition, plaintiff submitted the deposition transcripts of plaintiff and Reed, which established that plaintiff's action against defendants has merit ( see Zabari v. City of New York, 242 A.D.2d 15, 17, 672 N.Y.S.2d 332). In any event, even assuming, arguendo, that plaintiff failed to establish a justifiable excuse for the delay and a meritorious cause of action, we note that “[a] court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even [under those circumstances]” ( Rust v. Turgeon, 295 A.D.2d 962, 963, 746 N.Y.S.2d 223;see Strathearn v. Star Land & Dev. Co., LLC, 28 A.D.3d 1250, 1250, 812 N.Y.S.2d 916). We conclude that it was appropriate for the court to exercise such discretion under the facts of this case ( see Strathearn, 28 A.D.3d at 1250, 812 N.Y.S.2d 916).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.