Avoiding dismissal for failure to proceed.

Practice point: CPLR 3216 does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on an unreasonable neglect to proceed. Although the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, such a dual showing is not strictly necessary in order for a plaintiff to escape dismissal.

Student note: Plaintiff’s failure to meet the deadline for filing the note of issue was excused  because there was only a three-day delay in filing, and the excuse of law office failure was reasonable. In addition, the defendants did not claim any prejudice, and there was no evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action.

Case: Gordon v. Ratner, NY Slip Op 05497 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disclosing a cause of action as an asset in a bankruptcy proceeding.