Webb v. Zogaria

295 A.D.2d 924, 744 N.Y.S.2d 736, 2002 N.Y. App. Div. LEXIS 6191

Opinion

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered December 31, 2001, which, inter alia, denied defendants’ motion to dismiss the complaint for failure to serve and file a note of issue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.

Memorandum: Supreme Court improvidently exercised its discretion in denying defendants’ motion to dismiss the complaint pursuant to CPLR 3216. “Although a court may possess residual discretion to deny a motion to dismiss when plaintiff [fails to comply with CPLR 3216] * * *, this discretion should be exercised sparingly to honor the balance struck by the generous statutory protections already built into CPLR 3216” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 504). We conclude that defendants’ motion should have been granted based on plaintiff’s failure to make a showing of a meritorious cause of action (see generally id. at 503). Although defendants have conceded that defendant Cindy E. Zogaria was negligent, the record contains no evidence to support the contention of plaintiff that there was a causal connection between the spinal surgery that she underwent and the rear-end collision at issue in this case. Present—Pigott, Jr., P.J., Pine, Wisner, Scudder and Lawton, JJ.