New York Law Review

Salzano v. Pellillo, 66 N.Y.2d 964 (1985): Law Office Failure and CPLR 3216 Dismissal

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Salzano v. Pellillo, 66 N.Y.2d 964 (1985)

Law office failure can be a valid excuse for delay in filing a note of issue, and the Appellate Division must exercise its discretion in considering such excuses when reviewing a motion to dismiss under CPLR 3216.

Summary

This case concerns the dismissal of an action under CPLR 3216 for the plaintiffs’ failure to file a note of issue. The defendant moved to dismiss, and Special Term denied the motion. The Appellate Division reversed, citing law office failure as the excuse for the delay, and relying on *Barasch v. Micucci*. The Court of Appeals reversed the Appellate Division’s decision, holding that the Appellate Division erred by reversing “on the law” instead of exercising its discretion to consider the excuse of law office failure. The Court of Appeals remitted the case to the Appellate Division for reconsideration and proper exercise of its discretion.

Facts

The plaintiffs failed to file a note of issue in their case. The defendants moved to dismiss the action pursuant to CPLR 3216 due to this failure. The plaintiffs’ counsel proffered law office failure as the excuse for the delay.

Procedural History

The Special Term denied the defendants’ motion to dismiss. The Appellate Division reversed the Special Term’s order, granting the motion to dismiss based on law office failure as an insufficient excuse, citing *Barasch v. Micucci*. The Court of Appeals reversed the Appellate Division’s order regarding the individual respondents and reinstated the Special Term’s order pertaining to the Village of Valley Stream.

Issue(s)

  1. Whether the Appellate Division erred in reversing the Special Term’s denial of the motion to dismiss solely “on the law” due to law office failure being the proffered excuse for the delay.
  2. Whether the Appellate Division had jurisdiction over the Village of Valley Stream’s appeal, given the timeliness of the notice of appeal.

Holding

  1. Yes, because the Appellate Division should have exercised its discretion to consider the validity of the excuse of law office failure instead of automatically reversing on the law.
  2. No, because the Village of Valley Stream’s notice of appeal to the Appellate Division was not timely, thus the court lacked jurisdiction.

Court’s Reasoning

The Court of Appeals found that the Appellate Division erred by reversing the Special Term’s decision

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