         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
960
CA 12-00325
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


SCOTT WOODWARD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THOMAS M. CHAPMAN, ET AL., DEFENDANTS,
CAROL A. CONKLIN AND TERRY E. REED,
DEFENDANTS-APPELLANTS.


THOMAS P. DURKIN, ROCHESTER, FOR DEFENDANTS-APPELLANTS.


     Appeal from an order of the Supreme Court, Steuben County (Peter
C. Bradstreet, A.J.), entered June 24, 2011 in a personal injury
action. The order denied the motion of defendants Carol A. Conklin
and Terry E. Reed to dismiss the complaint for failure to prosecute.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that he allegedly sustained as the result of two motor
vehicle accidents. Plaintiff alleged that, in the accident that
occurred on April 7, 2004, Terry E. Reed, who was driving a vehicle
owned by Carol A. Conklin with her permission (collectively,
defendants), negligently operated his vehicle and collided head-on
with plaintiff’s vehicle, causing plaintiff to sustain a serious
injury within the meaning of Insurance Law § 5102 (d). Supreme Court
did not abuse its discretion in denying defendants’ motion to dismiss
the complaint against them pursuant to CPLR 3216, for failure to
prosecute. Although defendants met their initial burden on the
motion, in opposition thereto plaintiff established a justifiable
excuse for the delay in filing the note of issue by submitting
evidence that his attorney was in active discussion with the attorneys
for defendants about mediation (see Guenther v Wilson Mem. Hosp., 93
AD2d 957, 958, lv denied 60 NY2d 553, rearg denied 60 NY2d 861). In
addition, plaintiff submitted the deposition transcripts of plaintiff
and Reed, which established that plaintiff’s action against defendants
has merit (see Zabari v City of New York, 242 AD2d 15, 17). In any
event, even assuming, arguendo, that plaintiff failed to establish a
justifiable excuse for the delay and a meritorious cause of action, we
note that “[a] court retains discretion to deny a motion to dismiss
pursuant to CPLR 3216 even [under those circumstances]” (Rust v
Turgeon, 295 AD2d 962, 963; see Strathearn v Star Land & Dev. Co.,
LLC, 28 AD3d 1250, 1250). We conclude that it was appropriate for the
court to exercise such discretion under the facts of this case (see
                                -2-                  960
                                               CA 12-00325

Strathearn, 28 AD3d at 1250).




Entered:   September 28, 2012         Frances E. Cafarell
                                      Clerk of the Court
