Barrett v. Littles

260 A.D.2d 418, 686 N.Y.S.2d 728, 1999 N.Y. App. Div. LEXIS 3826

Opinion

—In an action for a judgment declaring, inter alia, that the plaintiff is the sole owner of two parcels of real property, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated January 26, 1998, which denied his motion, inter alia, pursuant to CPLR 3216 to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 504). The plaintiff had a justifiable excuse for his failure to file a note of issue due to the neglect of his previous attorneys (see, Carte v Segall, 134 AD2d 397).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Ritter, Joy and Altman, JJ., concur.