Altman v. Donnenfeld

• Citation: 2014 N.Y. Slip Op. 05402,990 N.Y.S.2d 542,119 A.D.3d 828
• Parties: Stewart N. ALTMAN, et al., respondents, v. Eric D. DONNENFELD, et al., appellants, et al., defendant.
• Decision Date: 23 July 2014
• Court: New York Supreme Court Appellate Division

119 A.D.3d 828

990 N.Y.S.2d 542

2014 N.Y. Slip Op. 05402

Stewart N. ALTMAN, et al., respondents,

v.Eric D. DONNENFELD, et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

July 23, 2014.

Martin Clearwater & Bell, LLP, New York, N.Y. (Stewart G. Milch, John L.A. Lyddane, and Steven A. Lavietes of counsel), for appellants.

Kaye & Lenchner, Mineola, N.Y. (Corey B. Kaye of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for medical malpractice, the defendants Eric D. Donnenfeld and Opthalmic Consultants of Long Island appeal, as limited by their brief, from so much an order of the Supreme Court, Nassau County (Winslow, J.), entered May 31, 2013, as denied their motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute.

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

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;seeCPLR 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 the statute prohibits the Supreme Court 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 meritorious cause of action ( seeCPLR 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;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;Davis v. Goodsell, 6 A.D.3d at 383–384, 774 N.Y.S.2d 568).

Here, upon receipt of the appellants' 90–day notice, the respondents did not file a note of issue within the 90–day period. However, the appellants refused certain requests to schedule a continued deposition of the injured respondent and, after the 90–day notice was served, both parties demonstrated an intent to proceed with discovery. Further, there is no evidence that the appellants were prejudiced by the minimal delay involved in this case or that there was a pattern of persistent neglect and delay in...