Przyjemski v. Surowaniec

221 A.D.2d 326, 633 N.Y.S.2d 359, 1995 N.Y. App. Div. LEXIS 11243

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated 'May 12, 1994, which denied his motion, inter alia, to dismiss the complaint for failure to prosecute pursuant to CPLR 3216.

Ordered that the order is affirmed, with costs.

In light of the strong policy favoring disposition of actions on the merits and the clear intention of the plaintiffs not to abandon the action, the relatively brief delay on their part in properly responding to the 90-day notice does not warrant the drastic remedy of dismissal, especially where, as here, the defendant cannot show prejudice (see, Conner v Brasserie, Inc., 136 AD2d 481; JMS Enters, v Belfield, 114 AD2d 886). Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.