Vera v. N.Y. Elevator & Elec. Corp.

• Decision Date: 10 May 2017
• Citation: 150 A.D.3d 927,55 N.Y.S.3d 114
• Parties: Salvador VERA, et al., respondents, v. NEW YORK ELEVATOR & ELECTRICAL CORPORATION, doing business as New York Elevator Company, appellant (and a third-party action).
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 927

55 N.Y.S.3d 114

Salvador VERA, et al., respondents,

v.NEW YORK ELEVATOR & ELECTRICAL CORPORATION, doing business as New York Elevator Company, appellant (and a third-party action).

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

May 10, 2017.

Geringer & Dolan LLP, New York, NY (Robert E. Coleman and John T. McNamara of counsel), for appellant.

Emeka Nwokoro, New York, NY, for respondents.

CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated December 10, 2014, as denied those branches of its motion which were pursuant to CPLR 3126 and 3216 to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Salvador Vera (hereinafter the injured plaintiff) allegedly was injured by a malfunctioning elevator which was maintained by the defendant. The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries. The defendant moved, among other things, to dismiss the complaint for failure to comply with a 90–day notice served pursuant to CPLR 3216, and pursuant to CPLR 3126 for failure to appear for a complete deposition or a physical examination. The Supreme Court denied those branches of the defendant's motion.

CPLR 3216 is "extremely forgiving" (Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ) 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’ " (Altman v. Donnenfeld, 119 A.D.3d 828, 828, 990 N.Y.S.2d 542, quoting Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568 ; see

CPLR 3216[a], [e] ; Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 504–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Kadyimov v. Mackinnon, 82 A.D.3d 938, 918 N.Y.S.2d 770 ). "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 the delay in the prosecution of the action and a meritorious cause of action, ... such a dual showing is not strictly necessary to avoid dismissal of the action" (Altman v. Donnenfeld, 119 A.D.3d at 828, 990 N.Y.S.2d 542 [citations omitted]; see Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 503–505, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; Gordon v. Ratner, 97 A.D.3d 634, 635, 948 N.Y.S.2d 627 ; Kadyimov v. Mackinnon, 82 A.D.3d 938, 918 N.Y.S.2d 770 ; Davis v. Goodsell, 6 A.D.3d at 383–384, 774 N.Y.S.2d 568 ). Here, the plaintiffs complied with discovery requests and the injured plaintiff was deposed for two days. The defendant served a 90–day notice on the plaintiffs after the plaintiffs' attorney withdrew from representing them in the action, and the plaintiffs did not file a note of issue within the 90–day period. After the plaintiffs obtained new counsel, they demonstrated an intent to proceed with discovery, making offers to promptly produce the injured plaintiff for a continued deposition and a medical examination. Under these circumstances, where there was no evidence of a pattern of persistent neglect or delay in prosecuting the action,...