Dorsch v. M. Kamath

—In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants Marion D. Kamath, sued herein as M. Kamath, Joseph Adiyody, sued herein as J. Adiyody, and Murugampalayam Shanmugham, sued herein as M. Shanmugham appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Ort, J.), entered April 2, 2002, as, upon granting reargument, adhered to its prior determination in an order dated December 11, 2001, denying their motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court providently exercised its discretion in adhering to its original determination denying the defendants’ motion to dismiss the complaint insofar as asserted against them. Although the plaintiff failed to follow a court order directing her to file a note of issue within 90 days, she demonstrated both a justifiable excuse for the delay and a meritorious cause of action. Accordingly, the defendants’ motion was properly denied (see generally City of New York v Philips, 233 AD2d 290 [1996]; Jeune v O.T. Trans Mix Corp., 202 AD2d 640 [1994]). Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.