Salik v. Atlantis Operating, LLC

Opinion

Salik v Atlantis Operating, LLC

2026 NY Slip Op 04970

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Kim R. Salik, etc., appellant,

v

Atlantis Operating, LLC, et al., defendants, Cobble Health Center, Inc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-13473, (Index No. 516140/20)

Angela G. Iannacci, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Parker Waichman, LLP, Port Washington, NY (Denny Tang of counsel), for appellant.

Gallardo Levin Reiter & Rogers, LLP, Jericho, NY (Domingo R. Gallardo and Richard M. Fedrow of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated December 18, 2024. The judgment, upon an order of the same court dated November 14, 2024, granting that branch of the motion of the defendant Cobble Health Center, Inc., which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it and, in effect, denying the plaintiff's motion to extend the time to file the note of issue, is in favor of the defendant Cobble Health Center, Inc., and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that on the Court's own motion, the plaintiff's notice of appeal from the order is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, that branch of the motion of the defendant Cobble Health Center, Inc., which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it is denied, the plaintiff's motion to extend the time to file the note of issue is granted, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action, inter alia, to recover damages for wrongful death against the defendant Cobble Health Center, Inc. (hereinafter the defendant), among others. A compliance conference order set a deadline for filing the note of issue of June 17, 2022, however, a note of issue was not filed at that time. In April 2023, the defendant served the plaintiff with a 90-day notice demanding that the plaintiff file the note of issue. After the 90-day period had expired, the plaintiff attempted to file a note of issue, but the note of issue was rejected by the Supreme Court as untimely because it was filed after June 17, 2022. The plaintiff then moved to extend the time to file the note of issue and the defendant moved, among other things, pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for failure to comply with its 90-day notice. By order dated November 14, 2024, the court, inter alia, granted that branch of the defendant's motion [*2]and, in effect, denied the plaintiff's motion. The court thereafter entered a judgment, upon the order, in favor of the defendant and against the plaintiff dismissing the complaint insofar as asserted against the defendant. The plaintiff appeals.

"[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period" (Cintron v Carter, 230 AD3d 1291, 1291-1292). "In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action" (Williams v Ibrahim, 241 AD3d 988, 989 [internal quotation marks omitted]). However, CPLR 3216 is "extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" (id. [internal quotation marks omitted]; see CPLR 3216[e]; Disla v El Potrero Sport Bar, Inc., 229 AD3d 763, 764; Western Union N. Am. v Chang, 176 AD3d 1138, 1139; Schimoler v Newman, 175 AD3d 740, 742).

Here, there was no evidence that the defendant was prejudiced by the plaintiff's delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action (see Disla v El Potrero Sport Bar, Inc., 229 AD3d at 764; Western Union N. Am. v Chang, 176 AD3d at 1139; Schimoler v Newman, 175 AD3d at 742).

Indeed, the record demonstrates that the plaintiff wrote two emails to the defendant, in two successive months within the 90-day period, specifying what discovery was still owed by the defendant and requesting that it be provided. The plaintiff wrote another email the day after the 90-day period expired and at least two more after that, at which point the plaintiff was required to move to compel discovery before the discovery was finally provided. Had the defendant complied with either of the plaintiff's first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff's inability to timely file a note of issue, the defendant's assertion of prejudice from the delay was disingenuous (see Williams v Ibrahim, 241 AD3d at 989).

Under all of these circumstances, the Supreme Court improvidently exercised its discretion in granting that branch of the defendant's motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against the defendant and, in effect, denying the plaintiff's motion to extend the time to file the note of issue.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court