Klein v. Mta-Long Island Bus

• Decision Date: 14 April 2009
• Docket Number: 2008-05267.,2007-10295.
• Citation: 2009 NY Slip Op 02974,61 A.D.3d 722,877 N.Y.S.2d 195
• Parties: ELLIOT KLEIN et al., Respondents, v. MTA-LONG ISLAND BUS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 722

877 N.Y.S.2d 195

2009 NY Slip Op 02974

ELLIOT KLEIN et al., Respondents, v. MTA-LONG ISLAND BUS et al., Appellants.

2007-10295.

2008-05267.

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

Decided April 14, 2009.

In an action to recover damages for personal injuries, etc., the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered October 15, 2007, as granted those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and restore the action to the trial calendar, and for summary judgment on the issue of liability, and (2) from an order of the same court entered April 28, 2008, which denied their motion, inter alia, for leave to renew their opposition to that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

Ordered that the order entered October 15, 2007 is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs' motion which was for summary judgment on the issue of liability, and substituting therefor a provision denying that branch of the motion; as so modified, the order entered October 15, 2007 is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the appeal from the order entered April 28, 2008 is dismissed as academic, without costs or disbursements, in light of the determination on the appeal from the order entered October 15, 2007.

The Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiffs' motion which was to vacate the dismissal of the action pursuant to CPLR 3216, and restore the action to the trial calendar. CPLR 3216 is an "extremely forgiving statute" which "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]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]; Primiano v Ginsberg, 55 AD3d 709 [2008]; Zito v Jastremski, 35 AD3d 458 [2006]; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d 753, 754 [2006]). The statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Di Simone v Good Samaritan Hosp., 100 NY2d at 633; Zito v Jastremski, 35 AD3d at 459; Goldblum v Franklin Munson Fire Dist., 27 AD3d 694 [2006]).

Here, the plaintiffs moved to vacate the order dismissing the action approximately two months after it had been issued, explaining that they had been unable to file a timely note of issue because the defendants' response to several significant discovery demands was still outstanding. Moreover, the plaintiffs submitted, inter alia, their deposition testimony to establish the existence of a meritorious cause of action, and it is clear from the record that they exhibited no intent to abandon the action. Under ...