Opinion
189 CA 22-01130
06-09-2023
Christine CASTIGLIONE, Plaintiff-Respondent, v. Jan PISANCZYN, Defendant-Appellant.
BURGIO, CURVIN & BANKER, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK M. BOGULSKI, BUFFALO, FOR PLAINTIFF-RESPONDENT.
BURGIO, CURVIN & BANKER, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK M. BOGULSKI, BUFFALO, FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this negligence action seeking damages for injuries that she allegedly sustained as a result of a motor vehicle accident. Defendant appeals from an order denying her motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute. We conclude under the circumstances of this case that Supreme Court did not abuse its discretion in denying defendant's motion. Even assuming, arguendo, that plaintiff failed to establish a justifiable excuse for any delay and a meritorious cause of action upon failing to comply with defendant's 90-day demand (see CPLR 3216 [e] ), we note that, contrary to defendant's contention, "[a] court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even [under those circumstances]" ( Rust v. Turgeon , 295 A.D.2d 962, 963, 746 N.Y.S.2d 223 [4th Dept. 2002] ; see Hawe v. Delmar , 148 A.D.3d 1788, 1789, 50 N.Y.S.3d 777 [4th Dept. 2017] ; Amanda C.S. v. Stearns [appeal No. 1], 49 A.D.3d 1227, 1228, 853 N.Y.S.2d 771 [4th Dept. 2008] ; Restaino v. Capicotto , 26 A.D.3d 771, 771, 808 N.Y.S.2d 879 [4th Dept. 2006] ; see generally Baczkowski v. Collins Constr. Co. , 89 N.Y.2d 499, 503-505, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997] ). Here, plaintiff's efforts to move the case forward during the 90-day period, which included reaching a stipulation with defendant to bifurcate the trial, " ‘negated any inference that [plaintiff] intended to abandon [the] action’ " ( Restaino , 26 A.D.3d at 772, 808 N.Y.S.2d 879 ; see Hawe , 148 A.D.3d at 1789, 50 N.Y.S.3d 777 ). Finally, we further note that "[t]here is no parallel between the circumstances of the instant case and those where CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution, and lack of any tenable excuse for such delay" ( Amanda C.S. , 49 A.D.3d at 1228, 853 N.Y.S.2d 771 [internal quotation marks omitted]; see Hawe , 148 A.D.3d at 1789, 50 N.Y.S.3d 777 ).