SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

368 

CA 16-00415 

PRESENT: PERADOTTO, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.

 

RONALD L. HAWE, PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

TODD DELMAR, INDIVIDUALLY AND AS AN EMPLOYEE OF 

OSWEGO COUNTY, I.E. OSWEGO COUNTY SHERIFF’S 

DEPARTMENT, OSWEGO COUNTY SHERIFF’S DEPARTMENT 

AND COUNTY OF OSWEGO, DEFENDANTS-RESPONDENTS. 

 

SHANLEY LAW OFFICES, OSWEGO (P. MICHAEL SHANLEY OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHRISTOPHER M.

MILITELLO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oswego County (Norman

W. Seiter, Jr., J.), entered December 18, 2015. The order granted the

motion of defendants to dismiss the complaint pursuant to CPLR 3216. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed in the exercise of discretion without costs,

defendants’ motion is denied, the complaint is reinstated, and the

matter is remitted to Supreme Court, Oswego County, for further

proceedings in accordance with the following memorandum: Plaintiff

commenced this negligence action seeking damages for injuries that he

sustained when defendant Todd Delmar, a deputy sheriff, allegedly

subjected plaintiff to an unlawful arrest and employed excessive

force. Plaintiff further alleged that defendants Oswego County

Sheriff’s Department and County of Oswego were negligent because they

did not properly instruct, supervise and control Delmar. Plaintiff

appeals from an order granting defendants’ motion to dismiss the

complaint pursuant to CPLR 3216 for failure to prosecute. We reverse.

Plaintiff established a justifiable excuse for his failure to

comply with defendants’ 90-day demand in the form of law office

failure, i.e., the postponement of depositions during the 90-day

period due to a necessary medical procedure for plaintiff’s attorney,

the assigned paralegal’s failure to reschedule before resigning from

the firm, and the subsequent misplacement of the client file without

the case being reassigned (see Restaino v Capicotto, 26 AD3d 771, 771-

772; Charnock v Preferred Mut. Ins. Co., 281 AD2d 981, 982). Contrary

to plaintiff’s contention, however, the affirmation of his attorney,

“who lacks personal knowledge of the facts, is insufficient to

establish a meritorious cause of action” (Wasielewski v Town of
-2- 368 

CA 16-00415 

Cheektowaga, 281 AD2d 944, 945), and even assuming, arguendo, that his

further contention is properly before us (cf. Nardozzi v Piotrowski,

298 AD2d 970, 970), we conclude that “[t]he ‘generalized details’ set

forth in plaintiff[’s] verified complaint are likewise insufficient”

(Wasielewski, 281 AD2d at 945).

Nonetheless, “ ‘[a] court retains discretion to deny a motion to

dismiss pursuant to CPLR 3216 even when a plaintiff fails to comply

with the 90-day requirement and fails to demonstrate a justifiable

excuse and a meritorious cause of action’ ” (Restaino, 26 AD3d at 771;

see generally Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-505). 

“[W]here discretionary determinations concerning discovery and CPLR

article 31 are at issue, [we are] vested with the same power and

discretion as [Supreme Court, and thus we] may also substitute [our]

own discretion even in the absence of abuse” (Daniels v Rumsey, 111

AD3d 1408, 1409 [internal quotation marks omitted]; see generally

Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc.,

11 NY3d 843, 845).

Under the circumstances here, we substitute our discretion for

that of the court, and we conclude that dismissal of the complaint is

not warranted. Plaintiff’s participation in ongoing disclosure that

occurred within the 90-day period—namely, the efforts of his attorney

to schedule the depositions of defendant Todd Delmar and a sheriff,

and his correspondence indicating his desire to reschedule those

depositions after his medical procedure—“ ‘negated any inference that

[plaintiff] intended to abandon [the] action’ ” (Restaino, 26 AD3d at

772). Plaintiff thus took steps to resume prosecution of the action

(cf. Baczkowski, 89 NY2d at 503-504), and the parties demonstrated an

intent to proceed with discovery, i.e., by corresponding about

rescheduling the depositions, after the 90-day demand was served (see

Altman v Donnenfeld, 119 AD3d 828, 828). Although there were some

delays attributable to plaintiff’s attorney and his law office both

before and after the 90-day demand, we conclude that “[t]here is no

parallel between the circumstances of the instant case and those where

CPLR 3216 dismissals have been justified based on patterns of

persistent neglect, a history of extensive delay, evidence of an

intent to abandon prosecution, and lack of any tenable excuse for such

delay” (Amanda C.S. v Stearns [appeal No. 1], 49 AD3d 1227, 1228

[internal quotation marks omitted]). Moreover, there is no indication

that defendants have been prejudiced by the delay (see Altman, 119

AD3d at 828-829; Loschiavo v DeBruyn, 6 AD3d 1113, 1114), and we note

that defendants also sought relief short of dismissal inasmuch as they

requested, in the alternative, that the court establish a deadline for

the completion of discovery and the filing of a note of issue.

Thus, in the exercise of our discretion, we reverse the order and

remit the matter to Supreme Court for further proceedings, including

establishing a date certain for plaintiff to complete discovery and

file a note of issue and certificate of readiness for trial, and

imposing a monetary sanction if deemed appropriate (see generally 
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CA 16-00415 

Baczkowski, 89 NY2d at 505; Amanda C.S., 49 AD3d at 1228).

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court