Plaintiff has moved in this medical malpractice action for three types of relief: (1) to vacate defendant's ninety-day notice to compel plaintiff to file a note of issue or suffer dismissal, or in the alternative for an extension of time to comply, (2) for leave to file a late Notice of Medical Malpractice, and (3) for an order directing defendants to produce all medical records pursuant to authorizations previously provided. Plaintiff alleges burns and other injuries caused by defendants' alleged surgical and post-surgical treatment of plaintiff's right foot and heel. In response to defendants' ninety-day notice, counsel states that he has not provided a bill of particulars or otherwise proceeded toward filing a note of issue because he was awaiting receipt of medical records from defense counsel. Citing Tewari v. Tsoutsouras, 75 NY2d 1 (1989), he asks that any delays and defaults be excused based on law office failure and that the case be allowed to proceed with discovery on the merits.

Defendant opposes the motion and also moves to dismiss based on plaintiff's failure to prosecute the action or provide discovery. He argues that plaintiff's delay in providing discovery was both extended (five years) and inexcusable. Relying on Grullon v. Henry, 7 AD3d 342 (1st Dep't 2004) and Ramos v. Lapommeray, 135 AD2d 439 (1st Dep't 1987), defendant asserts that it would be an abuse of discretion if the Court were to deny dismissal where, as here, plaintiff failed to timely move to vacate the ninety-day notice and failed to demonstrate excusable default and a meritorious claim.

In response, plaintiff reiterates that he was awaiting defendant's response to his numerous requests for medical records. On the merits, he recounts conversations with his expert at or about the time the Certificate of Merit was filed, adding that the expert has since died and cannot provide an affirmation himself. As to the timeliness of his motion, plaintiff alleges inconsistencies between defendant's assertion of a mailing date and the postmark on its letter. In any event, any lateness is de minimus, being at most a couple of days. Regarding discovery, plaintiff states that he is obtaining authorizations from his client who lives in Puerto Rico and that he is ready, willing and [*2]able to prosecute the case.

Plaintiff's motion is granted and defendant's motion is denied. With respect to the requested extension of time to file the Notice of Medical Malpractice, the Court of Appeals has recognized that the courts have broad discretion to excuse a late filing based on law office failure, similar to that alleged here, particularly where the defendant has not alleged any prejudice resulting from the delay. See, Tewari v. Tsoutsouras, 75 NY2d 1 (1989).

Similarly, with respect to a requested dismissal pursuant to CPLR 3216 for failure to prosecute, the Court of Appeals has described the statute as "extremely forgiving of litigation delay." Baczkowski v. Collins, 89 NY2d 499, 503 (1997). What is more, the statute, by its express terms, gives the court discretion. When a plaintiff fails to timely respond to a ninety-day demand and the defendant requests dismissal, CPLR 3216(e) provides that "the court may take such initiative or grant such motion unless the party shows justifiable excuse for the delay and a good and meritorious cause of action" (emphasis added). Significantly, the statute does not mandate dismissal.

Recognizing the strong preference for deciding cases on the merits, our Appellate Division has recently acknowledged the scope of a plaintiff's right to move in response to a ninety-day notice for an extension of time to file the note of issue. In Grant v. City of New York, 17 AD3d 215 (1st Dep't 2005), the Appellate Division reversed the lower court's denial of plaintiff's motion to extend its time to file a note of issue after defendant served a ninety-day notice. In so doing, the court emphasized that "numerous cases establish that a motion seeking such an extension constitutes a sufficient, timely response to a notice." 17 AD3d at 216. Where the motion is timely made, plaintiff is "not required by CPLR 3216(e) to demonstrate a reasonable excuse or meritorious cause of action in order to avoid dismissal..." Id at 217.

In light of the governing case law, the questions here are threefold: (1) whether plaintiff's motion for an extension of time to file the note of issue was timely made; (2) what standard should be applied when evaluating the motion; and (3) whether plaintiff has satisfied that standard. As to the first question, defendant has not conclusively established the facts supporting its claim of untimeliness. Although he has provided a copy of his ninety-day demand dated August 8, 2006, he has not provided proof of mailing; only the return receipt card was provided with a delivery date of August 11, 2006.

Even accepting this evidence as sufficient proof of mailing, defendant has not established its entitlement to dismissal. As the Appellate Division indicated in Grant, supra , when plaintiff timely moves for an extension of time, he is not required to prove excusable neglect and a meritorious claim. Here, plaintiff's motion was, at most, a day or two late. Such a brief delay does not compel the court to require exacting proof of excusable neglect and a meritorious defense, particularly where, as here, the brief delay has not prejudiced the defendant.

Such was the case in Diaz v. Yuan, 28 AD3d 603 (2nd Dep't 2006) where the Appellate Court affirmed the denial of defendant's 3216 motion to dismiss based on a ninety-day notice. There, the plaintiff's delay in filing the note of issue was "brief - a matter of days," was due to law office failure, and caused defendant no prejudice. Thus, the court did not demand exacting proof of a meritorious claim before allowing the [*3]case to proceed. Further, where the plaintiff's delay is attributable at least in part to defendant's actions, an affidavit of merit is not required. Lubov v. Welikson, ___ AD3d ___, 826 NYS2d 583 {36 AD3d 673} (2nd Dep't 2007). Here, plaintiff has demonstrated that he repeatedly requested medical records from the defendants and that his inability to proceed with discovery was attributable at least in part to the non-receipt of those records. Plaintiff's most recent request was made by letter dated August 9, 2006, one day after the date stated on defendant's ninety-day notice. While defendant argues that plaintiff cannot reasonably blame its inaction on a lack of records, it does not establish that it provided all records.

Considering all the circumstances, this Court finds that plaintiff has sufficiently established its entitlement to an extension of time to file a note of issue under Grant v. City, supra . The cases cited by defendant do not establish otherwise. In Ramos v. Lapommeray, 135 AD2d 439 (1st Dep't 1997), it appears that the court granted dismissal because plaintiff's delay was so extended that a physician's affidavit of merit was required to avoid dismissal. Similarly distinguishable is Grullon v. Henry, 7 AD3d 342 (1st Dep't 2004) where plaintiff neither opposed defendant's motion to dismiss nor cross-moved for an extension of time to file the note of issue. Here, in contrast, as noted above, plaintiff contacted defendant at or about the time the ninety-day notice was served, reiterating his request for medical records. Having received no records in response, plaintiff moved for an extension of time to file his note of issue at or about the time the ninety-day period expired. Defendant's motion to dismiss was served on or about the same date.

A "strong preference" exists in our law that actions be decided on the merits. Grant, 17 AD3d at 218, citing Marks v Vigo, 303 AD2d 306 (2003). In light of this preference, and considering plaintiff's explanation for his delay and defendant's failure to demonstrate that actual prejudice will ensue, this Court, in its discretion, finds that this action should proceed on the merits.

Accordingly, it is hereby

ORDERED that plaintiff's motion is granted and plaintiff's time to file a Notice of Medical Malpractice is extended through March 30, 2007; and it is further

ORDERED that defendant's ninety-day notice to dismiss pursuant to CPLR §3216 is vacated; and it is further

ORDERED that defendant's motion to dismiss is denied; and it is further

ORDERED that plaintiff shall promptly provide defendant with requested authorizations, defendant shall promptly provide copies of its records, and counsel for all parties shall appear before this Court in Room 222 for a preliminary conference on April 11, 2007 at 11:30 a.m. fully prepared to enter into a preliminary conference order for expedited discovery.

This constitutes the decision and order of this Court.

Dated: February 23, 2007

________________________

J.S.C.