Practice point: On receipt of plaintiffs' 90-day notice, defendants did not
file a note of issue within 90 days.. However, plaintiffs refused certain requests to schedule a continued deposition of the
injured defendant, and, after the notice was served, both parties
demonstrated an intent to proceed with discovery. Further, there is no
evidence that plaintiffs were prejudiced by the minimal delay
involved in this case, nor is there a pattern of persistent neglect
and delay in prosecuting the action. Neither is there any indication of an intent to abandon the
action. Under these circumstances, the Appellate Division affirmed the Supreme Court's exercise of its discretion in excusing defendants' failure to meet
the deadline for filing the note of issue.
Student note: CPLR 3216 is extremely forgiving in that it does not require, but merely authorizes, the
Supreme Court to dismiss a plaintiff's action based on the plaintiff's
unreasonable neglect to proceed. 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.
Case: Altman v. Donnenfeld, NY Slip Op 05402 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: An injured firefighter's suit sounding in negligence.
