JEAN M. DI SIMONE v. Good Samaritan Hospital

• Decision Date: 30 October 2003
• Citation: 100 N.Y.2d 632,800 N.E.2d 1102,768 N.Y.S.2d 735
• Parties: JEAN M. DI SIMONE, Appellant, v. GOOD SAMARITAN HOSPITAL et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

100 N.Y.2d 632

800 N.E.2d 1102

768 N.Y.S.2d 735

JEAN M. DI SIMONE, Appellant, v. GOOD SAMARITAN HOSPITAL et al., Respondents, et al., Defendants.

Court of Appeals of the State of New York.

Decided October 30, 2003.

Shayne, Dachs, Stanisci, Corker & Sauer, Mineola (Jonathan A. Dachs of counsel), and Kenneth J. Ready & Associates (Kenneth J. Ready of counsel), for appellant.

Bower, Sanger & Lawrence, New York City (Mitchell A. Greene of counsel), for Good Samaritan Hospital, respondent.

Law Offices of Charles E. Kutner, LLP, New York City (Charles E. Kutner of counsel), for Harvey Manes and another, respondents.

Before: Chief Judge KAYE and Judges SMITH, CIPARICK, GRAFFEO and READ concur in memorandum; Judge ROSENBLATT taking no part.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Plaintiff commenced this wrongful death action alleging medical malpractice in 1995. During the course of discovery, plaintiff's attorney became the subject of disciplinary proceedings and was ultimately disbarred in June 1998. His law firm took over the action, but plaintiff's case languished. In April and November 1999, respectively, defendant Good Samaritan and defendant Manes served plaintiff with a 90-day notice to resume prosecution pursuant to CPLR 3216 (b) (3). The matter was not transferred to plaintiff's present attorney until January 2000, when counsel advised the parties of plaintiff's intention to resume prosecution and proceed with discovery. To that end, all parties attended a certification conference at Supreme Court in April 2000.¹ Upon plaintiff's failure to respond to defendants' CPLR 3216 demands by filing a note of issue or moving for any alternative relief, defendants each moved to dismiss plaintiff's complaint.

We have previously observed that CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). If a party fails to comply with a 90-day demand to serve and file a note of issue, but demonstrates a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216 [e]), the trial court may not dismiss the action. Here, the trial court declined to dismiss plaintiff's complaint, determining that the claim had merit and that plaintiff provided a justifiable excuse for the delay.

On appeal, the Appellate Division reversed, found that plaintiff provided neither a reasonable excuse for the delay nor proof of a meritorious cause of action, and dismissed the complaint. Our review of this determination is limited to whether, as a matter of law, the Appellate Division abused its discretion (see Karger, Powers of the New York Court of Appeals § 96, at 597-598 [3d ed]).

Under these specific facts and circumstances, plaintiff has shown a justifiable excuse for the delay. The specific facts and circumstances include the delay engendered by disbarment of counsel, that such delay "was not willful or with intent to abandon the action, but rather was the result of neglect on the part of the [plaintiff's] previous attorneys" (Carte v Segall, 134 AD2d 397, 398 [2d Dept 1987]), and that—upon transfer to the present attorney—pretrial matters have proceeded with the knowledge and...