Gonzalez v. County of Westchester

28 A.D.3d 421, 811 N.Y.S.2d 574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant City of Yonkers appeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered June 24, 2005, as denied that branch of its motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to prosecute.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying that branch of the appellant’s motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to prosecute (see Davis v Goodsell, 6 AD3d 382, 384 [2004]). The 90-day notice was served prior to the completion of discovery (see McCracken v Nitto Kohki USA, 271 AD2d 510 [2000]; Scoglio v Scoglio, 253 AD2d 520, 521 [1998]; DeSimone v DiMaria, 216 AD2d 437 [1995]; Markarian v Hundert, 204 AD2d 697, 698 [1994]), the plaintiffs served and filed a note of issue and certificate of readiness within 90 days indicating that all discovery was not complete (see Canzoneri v Wigand Corp., 213 AD2d 579 [1995]), and the plaintiffs’ verified notice of claim was sufficient to demonstrate a meritorious cause of action (see Haiskins v Jorge, 147 AD2d 529 [1989]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.