RONALD L. HAWE, PLAINTIFF-APPELLANT,
TODD DELMAR, INDIVIDUALLY AND AS AN EMPLOYEE OF OSWEGO COUNTY, I.E. OSWEGO COUNTY SHERIFF'S DEPARTMENT, OSWEGO COUNTY SHERIFF'S DEPARTMENT AND COUNTY OF OSWEGO, DEFENDANTS-RESPONDENTS.
SHANLEY LAW OFFICES, OSWEGO (P. MICHAEL SHANLEY OF COUNSEL),
LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHRISTOPHER M.
MILITELLO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.
from an order of the Supreme Court, Oswego County (Norman W.
Seiter, Jr., J.), entered December 18, 2015. The order
granted the motion of defendants to dismiss the complaint
pursuant to CPLR 3216.
hereby ORDERED that the order so appealed from is unanimously
reversed in the exercise of discretion without costs,
defendants' motion is denied, the complaint is
reinstated, and the matter is remitted to Supreme Court,
Oswego County, for further proceedings in accordance with the
following memorandum: Plaintiff commenced this negligence
action seeking damages for injuries that he sustained when
defendant Todd Delmar, a deputy sheriff, allegedly subjected
plaintiff to an unlawful arrest and employed excessive force.
Plaintiff further alleged that defendants Oswego County
Sheriff's Department and County of Oswego were negligent
because they did not properly instruct, supervise and control
Delmar. Plaintiff appeals from an order granting
defendants' motion to dismiss the complaint pursuant to
CPLR 3216 for failure to prosecute. We reverse.
established a justifiable excuse for his failure to comply
with defendants' 90-day demand in the form of law office
failure, i.e., the postponement of depositions during the
90-day period due to a necessary medical procedure for
plaintiff's attorney, the assigned paralegal's
failure to reschedule before resigning from the firm, and the
subsequent misplacement of the client file without the case
being reassigned (see Restaino v Capicotto, 26
A.D.3d 771, 771-772; Charnock v Preferred Mut. Ins.
Co., 281 A.D.2d 981, 982). Contrary to plaintiff's
contention, however, the affirmation of his attorney,
"who lacks personal knowledge of the facts, is
insufficient to establish a meritorious cause of action"
(Wasielewski v Town of Cheektowaga, 281 A.D.2d 944,
945), and even assuming, arguendo, that his further
contention is properly before us (cf. Nardozzi v
Piotrowski, 298 A.D.2d 970, 970), we conclude that
"[t]he generalized details' set forth in
plaintiff['s] verified complaint are likewise
insufficient" (Wasielewski, 281 A.D.2d at 945).
" [a] court retains discretion to deny a motion to
dismiss pursuant to CPLR 3216 even when a plaintiff fails to
comply with the 90-day requirement and fails to demonstrate a
justifiable excuse and a meritorious cause of action'
" (Restaino, 26 A.D.3d at 771; see
generally Baczkowski v Collins Constr. Co., 89 N.Y.2d
499, 503-505). "[W]here discretionary determinations
concerning discovery and CPLR article 31 are at issue, [we
are] vested with the same power and discretion as [Supreme
Court, and thus we] may also substitute [our] own discretion
even in the absence of abuse " (Daniels v
Rumsey, 111 A.D.3d 1408, 1409 [internal quotation marks
omitted]; see generally Those Certain Underwriters at
Lloyds, London v Occidental Gems, Inc., 11 N.Y.3d 843,
the circumstances here, we substitute our discretion for that
of the court, and we conclude that dismissal of the complaint
is not warranted. Plaintiff's participation in ongoing
disclosure that occurred within the 90-day period-namely, the
efforts of his attorney to schedule the depositions of
defendant Todd Delmar and a sheriff, and his correspondence
indicating his desire to reschedule those depositions after
his medical procedure-" negated any inference that
[plaintiff] intended to abandon [the] action' "
(Restaino, 26 A.D.3d at 772). Plaintiff thus took
steps to resume prosecution of the action (cf.
Baczkowski, 89 N.Y.2d at 503-504), and the parties
demonstrated an intent to proceed with discovery, i.e., by
corresponding about rescheduling the depositions, after the
90-day demand was served (see Altman v Donnenfeld,
119 A.D.3d 828, 828). Although there were some delays
attributable to plaintiff's attorney and his law office
both before and after the 90-day demand, we conclude 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. v Stearns [appeal No. 1],
49 A.D.3d 1227, 1228 [internal quotation marks omitted]).
Moreover, there is no indication that defendants have been
prejudiced by the delay (see Altman, 119 A.D.3d at
828-829; Loschiavo v DeBruyn, 6 A.D.3d 1113, 1114),
and we note that defendants also sought relief short of
dismissal inasmuch as they requested, in the alternative,
that the court establish a deadline for the completion of
discovery and the filing of a note of issue.
in the exercise of our discretion, we reverse the order and
remit the matter to Supreme Court for further proceedings,
including establishing a date certain for plaintiff to
complete discovery and file a note of issue and certificate
of readiness for trial, and imposing a monetary sanction if