Opinion · Appellate Division of the Supreme Court of the State of New York
Baczkowski v. D.A. Collins Construction Co.
227 A.D.2d 789
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1996-05-10
- Topic
- general
Spain, J. (dissenting). We respectfully dissent. According to CPLR 3216 (e), Supreme Court has the discretionary power to dismiss an action for failure to file a note of issue upon the passage of 90 days from the date plaintiff was served with a written demand to serve and file a note of issue (see, Athanasiou v Esposito, 212 AD2d 878, 879, lv denied 85 NY2d 809). Such dismissal is not permitted, however, if plaintiff can demonstrate a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]), especially in view of the "strong policy favoring disposition of actions on the merits” (Przyjemski v Surowaniec, 221 AD2d 326, 327).
Citator
UpLaw has not yet analyzed Baczkowski v. D.A. Collins Construction Co.. The absence of a flag is not a finding that it is good law.
We respectfully dissent. According to CPLR 3216 (e), Supreme Court has the discretionary power to dismiss an action for failure to file a note of issue upon the passage of 90 days from the date plaintiff was served with a written demand to serve and file a note of issue (see, Athanasiou v Esposito, 212 AD2d 878, 879, lv denied 85 NY2d 809). Such dismissal is not permitted, however, if plaintiff can demonstrate a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]), especially in view of the "strong policy favoring disposition of actions on the merits” (Przyjemski v Surowaniec, 221 AD2d 326, 327).
We find no abuse or improvident exercise of discretion in Supreme Court’s decision denying defendant s motion to dismiss the complaint (see, Houck v Golub Corp., 217 AD2d 736; Pastore v Golub Corp., 184 AD2d 827; Salvaggio v California Packing Co., 12 AD2d 557). Plaintiff demonstrated both a justifiable excuse for the delay, inter alia, concern and uncertainty over whether discovery had been completed in the third-party action, and a meritorious cause of action, as set forth in the submitted transcript of plaintiff’s examination before trial. These factors, together with the absence of any proof that defendant has been prejudiced by the delay in question, should lead us to affirm the order of Supreme Court (see, General Acc. Fire & Life Assur. Corp. v North Am. Sys., 216 AD2d 725, 726-727).
Mikoll, J. P., concurs. Ordered that the appeal from order entered April 13, 1995 is dismissed, as academic. Ordered that the order entered August 9, 1995 is reversed, on the law, with costs, motion to dismiss the complaint for failure to prosecute granted and complaint dismissed.