Lauri v. Freeport Union Free Sch. Dist.

• Decision Date: 30 November 2010
• Citation: 78 A.D.3d 1130,912 N.Y.S.2d 278
• Parties: Teri LAURI, etc., et al., respondents, v. FREEPORT UNION FREE SCHOOL DISTRICT, et al., appellants.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 278

78 A.D.3d 1130

Teri LAURI, etc., et al., respondents,

v.FREEPORT UNION FREE SCHOOL DISTRICT, et al., appellants.

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

Nov. 30, 2010.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for appellants.

Curtis, Vasile, Merrick, N.Y. (Dominick A. Piccininni, Jr., of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Mahon, J.), dated October 9, 2009, which denied their motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, and granted those branches of the plaintiffs' cross motion which were to extend their time to serve and file a note of issue, and to vacate the defendants' 90-day notice.

ORDERED that the order is affirmed, with costs.

CPLR 3216 is an "extremely forgiving" statute ( Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460), 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 A.D.3d 382, 383, 774 N.Y.S.2d 568; see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102; Gibson v. Fakheri, 77 A.D.3d 619, 908 N.Y.S.2d 356; Ferrera v. Esposit, 66 A.D.3d 637, 638, 886 N.Y.S.2d 757). Moreover, 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 potentially meritorious cause of action ( see CPLR 3216[e]; Di Simone v. Good Samaritan Hosp., 100 N.Y.2d at 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102; Gibson v. Fakheri, 77 A.D.3d 619, 908 N.Y.S.2d 356; Ferrera v. Esposit, 66 A.D.3d at 638, 886 N.Y.S.2d 757).

Here, the plaintiffs presented a justifiable excuse for both their failure to timely respond to the defendants' 90-day notice and their delay in prosecuting this action through the affirmation of their attorney, who explained in detail that the delay was the result of a combination of both law office failure and his own health and personal issues ( see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d at 633-634, 768 N.Y.S.2d 735, 800 N.E.2d 1102; Goldstein v. Meadows Redevelopment Co. Owners Corp. I, 46 A.D.3d 509, 510-511, 846 N.Y.S.2d 384; Amato v. Commack Union Free School Dist., 32 A.D.3d 807, 808, 821 N.Y.S.2d 230). Furthermore, the plaintiffs' submissions were sufficient to demonstrate that they...