Strathearn v. Start Land & Development Co.

Appeal from an order of the Supreme Court, Livingston County (Ronald A. Cicoria, A.J.), entered April 7, 2005 in a personal injury action. The order denied defendants’ motion to dismiss the complaint for failure to prosecute. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We conclude under the circumstances of this case that Supreme Court did not abuse its discretion in denying defendants’ motion pursuant to CPLR 3216 seeking dismissal of the complaint for failure to prosecute. “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” (Rust v Turgeon, 295 AD2d 962, 963 [2002]). Present—Kehoe, J.P., Gorski, Martoche, Green and Hayes, JJ.