Casa Redimix Concrete Corp. v. MacQuesten General Contracting, Inc.

Jan 31, 2005
Versions:

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 10, 2004, which granted the defendants’ motion to dismiss the complaint for failure to comply with a 90-day demand pursuant to CPLR 3216 (b) (3).

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is denied, and the complaint is reinstated.

The Supreme Court granted the defendant‘s motion to dismiss the complaint based upon the plaintiff‘s failure to comply with a 90-day demand to file a note of issue (see CPLR 3216 [b]). However, in light of the strong policy favoring disposition of actions on the merits, the fact that plaintiff demonstrated a meritorious cause of action, and the brief delay in properly responding to the 90-day notice, the Supreme Court improvidently exercised its discretion in granting the motion to dismiss (see CPLR 3216 [e]; Havens v Flushing Hosp. Med. Ctr., 239 AD2d 466 [1997]; Przyjemski v Surowaniec, 221 AD2d 326 [1995]; Conner v Brasserie, Inc., 136 AD2d 481 [1988]). Schmidt, J.P., S. Miller, Santucci and Fisher, JJ., concur.