Baczkowski v. D.A. Collins Const. Co., Inc.

CourtNew York Court of Appeals
Writing for the CourtCIPARICK; KAYE
Citation655 N.Y.S.2d 848,678 N.E.2d 460,89 N.Y.2d 499
Decision Date20 March 1997
Parties, 678 N.E.2d 460 George BACZKOWSKI, Appellant, v. D.A. COLLINS CONSTRUCTION COMPANY, INC., Respondent and Third-Party Plaintiff, et al., Third-Party Defendant.

Page 848

655 N.Y.S.2d 848
89 N.Y.2d 499, 678 N.E.2d 460
George BACZKOWSKI, Appellant,
v.
D.A. COLLINS CONSTRUCTION COMPANY, INC., Respondent and
Third-Party Plaintiff, et al., Third-Party Defendant.
Court of Appeals of New York.
March 20, 1997.

Page 849

Grasso, Rodriguez, Grasso & Zyra, Schenectady (Mark A. Juda, of counsel), for appellant.

Taylor, Matalavage & Fallon, Albany (Megan Maureen Brown, of counsel), for respondent and third-party plaintiff.

OPINION OF THE COURT

CIPARICK, Judge.

The Appellate Division dismissed plaintiff's complaint for neglect to prosecute pursuant to CPLR 3216. The question on appeal is whether plaintiff proffered a justifiable excuse for past delay and for failing to file a note of issue within 90 days after receiving a demand to do so from defendant. We hold that plaintiff failed to tender a justifiable excuse and, accordingly, the Appellate Division properly dismissed plaintiff's complaint.

This action stems from construction-site injuries sustained by plaintiff on November

Page 850

18, 1986. Plaintiff was operating a truck owned by defendant D.A. Collins Construction Co. and had driven the vehicle atop a hill when the vehicle's brakes allegedly failed. As the truck started to roll down the hill, plaintiff jumped out and was injured when he hit the ground.

On November 2, 1989, plaintiff commenced this action in negligence and strict products liability by service of a summons and notice. Plaintiff thereafter served a complaint on defendant on December 26, 1989. On January 8, 1990, defendant answered plaintiff's complaint, and, on November 19, 1990, commenced a third-party action against plaintiff's employer, Kubricky Construction Corp. Very little activity occurred in the action during the next four years, aside from defendant taking plaintiff's deposition in February 1991 and September 1992.

On July 27, 1994, defendant served a demand on plaintiff to resume prosecution of the action and file a note of issue within 90 days (see, CPLR 3216[b][3] ). Plaintiff did not file a note of issue within the 90-day period and took no other step to indicate an intention to proceed with the action. On December 13, 1994, 139 days after serving the 90-day demand, defendant moved to dismiss plaintiff's complaint pursuant to CPLR 3216. Plaintiff submitted no papers opposing the motion to dismiss. Instead, on January 20, 1995, 10 days before the return date of defendant's motion and 87 days after the expiration of the 90-day period, plaintiff filed a note of issue.

On April 13, 1995, Supreme Court preliminarily ruled on the motion by issuing a conditional order of dismissal, granting plaintiff an additional 30 days to demonstrate a justifiable excuse for the delay and to submit an affidavit of merit. In response, plaintiff submitted a two-page attorney's affidavit stating that the delay was attributable to uncertainty over the status of third-party discovery requests, as evidenced by plaintiff's written inquiries directed to defendant in September and November 1993. Plaintiff's counsel also explained that on December 21, 1994, his secretary attempted to file a note of issue, but, because she was unfamiliar with recent amendments to the CPLR, her endeavors proved unsuccessful. In lieu of an affidavit of merit from plaintiff, his attorney submitted plaintiff's deposition transcript.

Supreme Court thereafter denied defendant's motion to dismiss, concluding that plaintiff established a justifiable excuse and a meritorious cause of action. The Appellate Division reversed, with two Justices dissenting. The Court held that plaintiff did not demonstrate a justifiable excuse for failing to comply with the 90-day requirement of CPLR 3216 and dismissed the action. Plaintiff appealed to this Court as of right (see, CPLR 5601[a] ), and we now...

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159 practice notes
  • HSBC Bank USA, N.A. v. Williams, 2017–00411
    • United States
    • New York Supreme Court Appellate Division
    • November 27, 2019
    ...action in response to the 90–day demand, as well as a potentially meritorious cause of action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Bischoff v. Hoffman, 112 A.D.3d 659, 976 N.Y.S.2d 406 ). CPLR 3216 is "extremely forgiving" ( Baczkowski v.......
  • Arch Bay Holdings, LLC v. Albanese
    • United States
    • New York Supreme Court Appellate Division
    • January 18, 2017
    ...of the action for want of prosecution, and to restore the action to the calendar (see CPLR 3216 ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Bell v. United Parcel Serv., Inc., 140 A.D.3d 1106, 1106–1107, 33 N.Y.S.3d 757 ; Davis v. Goodsell, 6 A......
  • Byers v. Winthrop Univ. Hosp.
    • United States
    • New York Supreme Court Appellate Division
    • November 21, 2012
    ...certification order and the existence of a potentially meritorious cause of action ( seeCPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Rodriguez v. Five Towns Nissan, 69 A.D.3d at 834, 892 N.Y.S.2d 768;Davis v. Cardiovascular Consultant......
  • HSBC Bank USA, Nat'l Ass'n v. Fortini, 2019-01775
    • United States
    • New York Supreme Court Appellate Division
    • December 23, 2020
    ...in that it moved for summary judgment on the complaint within the 90–day period (see CPLR 3216[e] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; see generally S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 ......
  • Request a trial to view additional results
159 cases
  • HSBC Bank USA, N.A. v. Williams, 2017–00411
    • United States
    • New York Supreme Court Appellate Division
    • November 27, 2019
    ...action in response to the 90–day demand, as well as a potentially meritorious cause of action (see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Bischoff v. Hoffman, 112 A.D.3d 659, 976 N.Y.S.2d 406 ). CPLR 3216 is "extremely forgiving" ( Baczkowski v.......
  • Arch Bay Holdings, LLC v. Albanese
    • United States
    • New York Supreme Court Appellate Division
    • January 18, 2017
    ...of the action for want of prosecution, and to restore the action to the calendar (see CPLR 3216 ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Bell v. United Parcel Serv., Inc., 140 A.D.3d 1106, 1106–1107, 33 N.Y.S.3d 757 ; Davis v. Goodsell, 6 A......
  • Byers v. Winthrop Univ. Hosp.
    • United States
    • New York Supreme Court Appellate Division
    • November 21, 2012
    ...certification order and the existence of a potentially meritorious cause of action ( seeCPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Rodriguez v. Five Towns Nissan, 69 A.D.3d at 834, 892 N.Y.S.2d 768;Davis v. Cardiovascular Consultant......
  • HSBC Bank USA, Nat'l Ass'n v. Fortini, 2019-01775
    • United States
    • New York Supreme Court Appellate Division
    • December 23, 2020
    ...in that it moved for summary judgment on the complaint within the 90–day period (see CPLR 3216[e] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; see generally S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 ......
  • Request a trial to view additional results

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