Baczkowski v. D.A. Collins Constr. Co., 89 N.Y.2d 499 (1997)
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Under CPLR 3216, a plaintiff must demonstrate a justifiable excuse for delay and a meritorious cause of action to avoid dismissal for failure to prosecute after a 90-day demand to file a note of issue.
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Summary
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Baczkowski sued D.A. Collins Construction Co. for injuries sustained at a construction site in 1986. After a significant period of inactivity, the defendant served a 90-day demand for the plaintiff to file a note of issue. When the plaintiff failed to comply, the defendant moved to dismiss the case. The plaintiff then filed a late note of issue and offered an excuse for the delay, which the Supreme Court initially accepted. The Appellate Division reversed, and the New York Court of Appeals affirmed, holding that the plaintiff’s excuses were inadequate to justify the extensive delay, warranting dismissal of the case.
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Facts
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Plaintiff was injured on November 18, 1986, while operating a truck owned by defendant. The accident occurred when the truck’s brakes allegedly failed, causing it to roll down a hill, and the plaintiff jumped out, sustaining injuries. The lawsuit was commenced on November 2, 1989. After the defendant served a 90-day demand on July 27, 1994, the plaintiff did not file a note of issue within that timeframe. The plaintiff only filed a note of issue 87 days after the 90-day period expired, and only after the defendant moved to dismiss the case. The claimed excuses for the delay were uncertainty regarding third-party discovery and a secretary’s unsuccessful attempt to file the note of issue due to unfamiliarity with CPLR amendments.
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Procedural History
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The Supreme Court initially granted a conditional order of dismissal, allowing the plaintiff an additional 30 days to demonstrate a justifiable excuse and submit an affidavit of merit. The Supreme Court then denied the defendant’s motion to dismiss. The Appellate Division reversed, dismissing the complaint. The Court of Appeals affirmed the Appellate Division’s decision.
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Issue(s)
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Whether the plaintiff proffered a justifiable excuse for past delay and for failing to file a note of issue within 90 days after receiving a demand to do so from the defendant, as required by CPLR 3216.
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Holding
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No, because the plaintiff failed to provide a justifiable excuse for the delay and for failing to comply with the 90-day requirement of CPLR 3216.
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Court’s Reasoning
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The Court of Appeals emphasized that CPLR 3216 is