Diaz v. Yuan
| Decision Date | 18 April 2006 |
| Docket Number | 2005-09096. |
| Citation | 814 N.Y.S.2d 204,2006 NY Slip Op 02847,28 A.D.3d 603 |
| Parties | CHERYLANN DIAZ et al., Respondents, v. LILY YUAN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
"CPLR 3216 is, by its terms `extremely forgiving' 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 . . . 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 his or her delay, and a meritorious cause of action . . . such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" (Davis v. Goodsell, 6 AD3d 382, 383-384 [2004]; see Ferrara v. N.Y. & Atl. Ry. Co., 25 AD3d 753 [2006]). Here, the delay in filing a note of issue was brief—a matter of days—and there was no prejudice to the defendants. The delay was attributable to law office failure which may constitute a reasonable excuse (see Santiago v. New York City Health & Hosps. Corp., 10 AD3d 393 [2004]). There was clearly no intent to abandon the action (see Ferrara v. N.Y. & Atl. Ry. Co., supra).
Under the circumstances, the denial of the motion to dismiss was a provident exercise of discretion.
To continue reading
Request your trial
-
Atterberry v. Serlin
...1130, 912 N.Y.S.2d 278; Goldstein v. Meadows Redevelopment Co Owners Corp. I, 46 A.D.3d 509, 510, 846 N.Y.S.2d 384; Diaz v. Yuan, 28 A.D.3d 603, 814 N.Y.S.2d 204). Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of a......
-
Kadyimov v. MacKinnon
...( see Ferrera v. Esposit, 66 A.D.3d at 638, 886 N.Y.S.2d 757; Zito v. Jastremski, 35 A.D.3d 458, 459, 825 N.Y.S.2d 255; Diaz v. Yuan, 28 A.D.3d 603, 814 N.Y.S.2d 204). ...
-
Gordon v. Ratner
...770;see Ferrera v. Esposit, 66 A.D.3d 637, 638, 886 N.Y.S.2d 757;Zito v. Jastremski, 35 A.D.3d 458, 825 N.Y.S.2d 255;Diaz v. Yuan, 28 A.D.3d 603, 814 N.Y.S.2d 204;cf. Sicoli v. Sasson, 76 A.D.3d 1002, 1003–1004, 908 N.Y.S.2d 100;Nowell v. NYU Med. Ctr., 55 A.D.3d 573, 865 N.Y.S.2d 309). Acc......
- Doe v. North Shore University Hospital