The plaintiff moves for leave to reargue a prior decision and order of this court dismissing the plaintiff's action pursuant to CPLR Rule 3216. The motion is actually an application for leave to renew in that it asserts new facts which were not before the court at the time of the prior decision.

On August 7, 2006, this court served, by certified mail, return receipt requested, pursuant to CPLR Rule 3216(b)(3) a demand for the plaintiff to resume prosecution within ninety days. The plaintiff failed to respond in any manner to that demand either by filing the note of issue or moving for an extension. By order dated December 5, 2006, this court dismissed the plaintiff's complaint.

It is well established that upon receipt of a ninety day demand pursuant to CPLR Rule 3216, a plaintiff is required to either file a note of issue within ninety days or move before the default date for an extension of time within which to comply. (Walters v. Hoboken Wood Flooring Corp., 6 AD3d 696, 697 [2d Dept. 2004].) It is uncontroverted that the plaintiff did neither upon receipt of the ninety day demand. On this motion, the plaintiff's counsel avers that this file had been assigned to an associate who subsequently left the firm without addressing the court's demand. The plaintiff's counsel avers that the associate put the file away without diarying it for any future date so that it was lost in the system until receipt of the court's order of dismissal.

It has been held that CPLR Rule 3216 is "extremely forgiving of litigation delay." (Baczkowski v. D.A. Collins Construction Co., Inc., 89 NY2d 499, 503 [1997].) In that decision, the Court of Appeals noted that even if the plaintiff fails to comply with the ninety day demand, he has another opportunity to "salvage" his action by demonstrating a justifiable excuse and establishing that his claim has merit. (Baczkowski, supra at 503.)

On this motion, the plaintiff has provided his affidavit which establishes, on a prima facie basis, a viable cause of action against the defendant. I find that the plaintiff has also established a justifiable excuse for failing to timely respond to the demand served pursuant to CPLR Rule [*2]3216. The court notes that the defendant, in opposing this application, has failed to demonstrate any prejudice to his defense of this action.

For all of the foregoing reasons, it is ordered that the plaintiff's motion for leave to renew is granted and upon renewal, the motion to dismiss the plaintiff's complaint pursuant to CPLR Rule 3216 is denied. The plaintiff's time to file and serve a note of issue is extended to June 29, 2007.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Order to Show Cause......................1

Affirmation-Spinac..................1-2

Exhibits............................A-B

2.Affirmation in Opposition-Whalen.........1-2

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

March 9, 2007

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

030107 decision&order