Opinion
2014-07550, 2014-11009
05-13-2015
Thomas ROSSI, et al., appellants, v. Alan J. SCHEINBACH, etc., et al., respondents.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Barry S. Kantrowitz and Reginald H. Rutishauser of counsel), for appellants. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondents.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Barry S. Kantrowitz and Reginald H. Rutishauser of counsel), for appellants.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondents.
PETER B. SKELOS, J.P., MARK C. DILLON, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Marber, J.), entered June 17, 2014, which denied their motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendar, and (2) an order of the same court entered November 21, 2014, which denied their motion, in effect, for leave to reargue and renew.
ORDERED that the appeal from so much of the order entered November 21, 2014, as denied that branch of the plaintiffs' motion which was, in effect, for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the appeal from so much of the order entered November 21, 2014, as denied that branch of the plaintiffs' motion which was, in effect, for leave to renew is dismissed as academic in light of our determination of the appeal from the order entered June 17, 2014; and it is further,
ORDERED that the order entered June 17, 2014, is reversed, on the facts and in the exercise of discretion, and the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendar is granted; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
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, 774 N.Y.S.2d 568 ; see CPLR 3216[a], [e] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 504–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Kadyimov v. Mackinnon, 82 A.D.3d 938, 918 N.Y.S.2d 770 ). While generally, the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action (see CPLR 3216[e] ; Picot v. City of New York, 50 A.D.3d 757, 758, 855 N.Y.S.2d 237 ), such a dual showing is not strictly necessary to avoid dismissal of the action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 503–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Altman v. Donnenfeld, 119 A.D.3d 828, 990 N.Y.S.2d 542 ; Gordon v. Ratner, 97 A.D.3d 634, 635, 948 N.Y.S.2d 627 ; Kadyimov v. Mackinnon, 82 A.D.3d 938, 918 N.Y.S.2d 770 ).
Under the circumstances of this case, including the minimal 4–day delay in filing the note of issue, the fact that the defendants demanded additional discovery subsequent to the court's certification order containing the 90–day demand, the absence of any claim of prejudice, and the lack of evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action, the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiffs' failure to meet the deadline for filing the note of issue (see Altman v. Donnenfeld, 119 A.D.3d at 828–829, 990 N.Y.S.2d 542 ; Gordon v. Ratner, 97 A.D.3d at 635, 948 N.Y.S.2d 627 ; Kadyimov v. Mackinnon, 82 A.D.3d at 939, 918 N.Y.S.2d 770 ; Zito v. Jastremski, 35 A.D.3d 458, 825 N.Y.S.2d 255 ; Goldblum v. Franklin Munson Fire Dist., 27 A.D.3d 694, 815 N.Y.S.2d 593 ; Ferrara v. N.Y. & Atl. Ry. Co., 25 A.D.3d 753, 808 N.Y.S.2d 761 ). Accordingly, the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendar should have been granted.