Espinoza v. 373-381 Park Avenue South, LLC, 1790N

CourtNew York Supreme Court Appellate Division
Citation68 A.D.3d 532,891 N.Y.S.2d 355,2009 NY Slip Op 9288
Decision Date15 December 2009
PartiesLUIS M. ESPINOZA, Respondent, v. 373-381 PARK AVENUE SOUTH, LLC, et al., Appellants, et al., Defendant.
Docket Number14157/06,1790N
68 A.D.3d 532
2009 NY Slip Op 9288
891 N.Y.S.2d 355
LUIS M. ESPINOZA, Respondent,
v.
373-381 PARK AVENUE SOUTH, LLC, et al., Appellants, et al., Defendant.
1790N
14157/06
Appellate Division of the Supreme Court of New York, First Department.
Decided December 15, 2009.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about May 22, 2009, which denied the Park Avenue South and Atco defendants' motion to vacate the note of issue and dismiss the complaint for want of prosecution, unanimously affirmed, without costs.


Contrary to the movants' contention, "Entry of a judgment against a party defaulting in appearance is not mandatory" (Tortorello v Carlin, 260 AD2d 201, 204 [1999]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]). When plaintiff appeared at the hearing, the court had before it the note of issue and the receipt showing that the note had been timely filed, by which point plaintiff had already responded to discovery demands, completed his deposition and submitted to physical examination by defendants.

The nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1999]). CPLR 3216 is an "extremely forgiving" rule that "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 AD3d 382, 383 [2004]). It prohibits dismissal on this ground whenever the plaintiff can show justifiable excuse for the delay and merit to the action (see CPLR 3216 [e]; Di Simone v Good Samaritan Hosp., 100 NY2d 632 [2003]).

Plaintiff stated in his certificate of readiness that all "known discovery" was complete. One day later, he filed a notice to depose an additional nonparty. By that point, all other discovery had been completed. This is not like the cases where "CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay" (Schneider v Meltzer, 266 AD2d 801, 802 [1999]). It appears that plaintiff's omission may have been a mistake, and the minor delay to complete discovery should not require a drastic penalty. Moreover, the complaint and bill of particulars detail plaintiff's claims under the Labor Law and his alleged injuries, so a...

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5 practice notes
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • September 21, 2010
    ...imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" ( Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [2009] ). Based on the foregoing principles and under the circumstances presented, the motion court did not abuse it......
  • Rosario v. Albany Express, 5848
    • United States
    • New York Supreme Court Appellate Division
    • March 1, 2018
    ...in denying the motion to dismiss this personal injury action for want of prosecution (see Espinoza v. 373–381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [1st Dept. 2009] ). The record indicates that plaintiff actively litigated his claims against all four defendants, and appear......
  • Thompson v. Beth Isr. Med. Ctr., 10115-
    • United States
    • New York Supreme Court Appellate Division
    • December 5, 2019
    ...534 Schneider v. Meltzer , 266 A.D.2d 801, 802, 700 N.Y.S.2d 237 [3d Dept. 1999] ; compare Espinoza v. 373–381 Park Ave. S., LLC , 68 A.D.3d 532, 891 N.Y.S.2d 355 [1st Dept. 2009] ).We have considered plaintiff's remaining contentions and find them...
  • Tyrell v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • December 21, 2010
    ...circumstances, we agree with the motion court that plaintiff should be permitted to proceed ( see Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 891 N.Y.S.2d 355 [2009]; Davis v. Goodsell, 6 A.D.3d 382, 774 N.Y.S.2d 568 [2004] ). ANDRIAS, J.P., SAXE, MOSKOWITZ, ACOSTA, FREEDMAN, JJ.,...
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5 cases
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • September 21, 2010
    ...imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" ( Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [2009] ). Based on the foregoing principles and under the circumstances presented, the motion court did not abuse it......
  • Rosario v. Albany Express, 5848
    • United States
    • New York Supreme Court Appellate Division
    • March 1, 2018
    ...in denying the motion to dismiss this personal injury action for want of prosecution (see Espinoza v. 373–381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [1st Dept. 2009] ). The record indicates that plaintiff actively litigated his claims against all four defendants, and appear......
  • Thompson v. Beth Isr. Med. Ctr., 10115-
    • United States
    • New York Supreme Court Appellate Division
    • December 5, 2019
    ...534 Schneider v. Meltzer , 266 A.D.2d 801, 802, 700 N.Y.S.2d 237 [3d Dept. 1999] ; compare Espinoza v. 373–381 Park Ave. S., LLC , 68 A.D.3d 532, 891 N.Y.S.2d 355 [1st Dept. 2009] ).We have considered plaintiff's remaining contentions and find them...
  • Tyrell v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • December 21, 2010
    ...circumstances, we agree with the motion court that plaintiff should be permitted to proceed ( see Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 891 N.Y.S.2d 355 [2009]; Davis v. Goodsell, 6 A.D.3d 382, 774 N.Y.S.2d 568 [2004] ). ANDRIAS, J.P., SAXE, MOSKOWITZ, ACOSTA, FREEDMAN, JJ.,...
  • Request a trial to view additional results

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