Barnard v. Tops Friendly Markets

99 A.D.2d 654

Opinion

Order unanimously affirmed, without costs. Memorandum: CPLR 3216 (subd [a]) authorizes a court to dismiss a complaint when it finds that a party has unreasonably neglected to prosecute his claim. It was incumbent upon plaintiff to offer a justifiable excuse for the almost 21-month delay between service of the demand to file a note of issue and the motion to dismiss the action. Plaintiff’s offered excuse that there was an appeal pending in a companion cause of action is unavailing. While the pendency of an appeal in some instances will excuse the delay in going forward (see Chuttick v Collins, 24 AD2d 540), the appeal upon which plaintiff relies was not perfected until 20 days after service of the notice of motion to dismiss for failure to prosecute. Special Term did not abuse its discretion in finding that this delay was unreasonable. (Appeal from order of Supreme Court, Monroe County, Tillman, J. — discovery.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.