Baczkowski v. D.A. Collins Construction Co., Inc.
New York Court of Appeals
89 N.Y.2d 499, 655 N.Y.S.2d 848, 678 N.E.2d 460 (1997)
- Written by Steven Pacht, JD
Facts
In November 1986, George Baczkowski (plaintiff) was injured while driving a truck owned by D.A. Collins Construction Company, Inc. (Collins) (defendant). Baczkowski sued Collins in November 1989, asserting negligence and strict-liability claims. The case largely languished until July 1994, when Collins made a demand pursuant to Civil Practice Law and Rules (CPLR) § 3216 that Baczkowski resume prosecution of his suit and file a notice of issue within 90 days. Baczkowski did not do either. In December 1994 (139 days after serving its 90-day demand), Collins moved, pursuant to § 3216, to dismiss Baczkowski’s complaint for failure to prosecute. Baczkowski did not oppose Collins’s motion; instead, in January 1995 (10 days before the return date on Collins’s motion and 187 days after Collins’s demand), Baczkowski filed a notice of issue. In April 1995, the supreme court granted Baczkowski 30 days to justify his delay in filing a notice of issue and to submit an affidavit of merit regarding his claims. In response, Baczkowski submitted a two-page affidavit from his attorney stating that Baczkowski’s delay was due to uncertainty regarding third-party discovery and claiming that the attorney’s secretary tried to serve a notice of issue in December 1994 but failed because she was unfamiliar with recent CPLR amendments. Instead of submitting an affidavit of merit, Baczkowski’s attorney submitted Baczkowski’s deposition transcript. The supreme court denied Collins’s motion to dismiss, concluding that Baczkowski showed justifiable excuse for his delay and that his claims had merit. The appellate division reversed, ruling that Baczkowski failed to show a justifiable excuse. Baczkowski appealed.
Rule of Law
Issue
Holding and Reasoning (Ciparick, J.)
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