Coleman v. Baker / Mellon Stuart Construction, Inc.

—Order unani [925] mously affirmed with costs. Memorandum: Defendant appeals from an order granting plaintiffs motion for reargument and, upon reargument, vacating the order dismissing the action for failure to prosecute and restoring the action to the trial calendar. We affirm. Although plaintiff did not submit an affidavit of merit until the motion to reargue, “[i]t has long been the rule that where, as here, the delay in serving and filing the note of issue is caused or affirmatively contributed to by the defendant, [its] motion to dismiss should be denied without requiring plaintiff to serve an affidavit of merit[]” (Schoenhals v Kissing Bridge Corp., 96 AD2d 711). It is evident from the record before us that plaintiff sought discovery throughout the course of this action, including the period following defendant’s service of the 90-day demand (see, CPLR 3216 [b] [3]), and that defendant’s failure to cooperate with plaintiffs discovery attempts contributed to plaintiffs delay in filing the note of issue. Thus, defendant is not entitled to dismissal of this action for failure to prosecute. (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Hayes, Wisner, Kehoe and Burns, JJ.