You are here: / / CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL...
,

CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A 90-DAY NOTICE; HERE PLAINTIFFS PRESENTED AN ADEQUATE EXCUSE AND DEMONSTRATED THE ACTION HAS MERIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should not have been dismissed on “neglect to proceed” grounds after plaintiffs’ failure to comply with the 90-day notice:

“CPLR 3216 is an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates “a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action” … . “Thus, even when all of the statutory preconditions are met, including plaintiff’s failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse” and proof of a potentially meritorious cause of action … .

Here, the plaintiffs’ belief that the action remained stayed in the absence of some affirmative act by the Supreme Court, although erroneous, constituted a justifiable excuse under the circumstances for their failure to respond to the defendant’s 90-day notice. Notably, the 90-day notice was sent only three months after the stay had been lifted, and the record does not otherwise contain evidence of a pattern of persistent neglect or delay in prosecuting the action or an intent to abandon the action … . Furthermore, the plaintiffs established the existence of a potentially meritorious cause of action sounding in strict products liability … . Holness v Gigglesworld Corp., 2024 NY Slip Op 06031, Second Dept 12-4-24

Practice Point: CPLR 3216 is a forgiving statute which allows but does not require the dismissal of a complaint for failure to comply with a 90-day notice. Here plaintiffs presented an adequate excuse and demonstrated a meritorious cause of action. The complaint should not have been dismissed.

 

You might also like
THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED (SECOND DEPT). ​
THE UNINSURED PLAINTIFF WAS AWARDED TENS OF MILLIONS OF DOLLARS, INCLUDING FUTURE MEDICAL COSTS, AFTER TRIAL FOR AN INJURY WHICH LEFT HIM PARALYZED; DEFENDANT REQUESTED A COLLATERAL SOURCE HEARING PURSUANT TO CPLR 4545 BECAUSE PLAINTIFF MAY BE ABLE TO RECOVER FUTURE MEDICAL COSTS UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT; IN A MATTER OF FIRST IMPRESSION THE SECOND DEPARTMENT HELD DEFENDANT WAS ENTITLED TO A COLLATERAL SOURCE HEARING (SECOND DEPT).
PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT).
THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE RULINGS IN THIS CUSTODY/PARENTAL ACCESS CASE, HEARINGS SHOULD HAVE BEEN HELD; THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE IMPOSITION OF SANCTIONS FOR FRIVOLOUS CONDUCT (SECOND DEPT). ​
NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT).
Question of Fact Whether Softball Coach’s Having Infant Plaintiff Practice Sliding on Grass Increased the Inherent Risk of the Activity Precluded Summary Judgment
RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF DID NOT PROVE DEFENDANT OWNER OF DEFENDANT CORPORATION WAS PROPERLY... THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT...