Bell v Charles

[*1] Bell v Charles 2010 NY Slip Op 50342(U) [26 Misc 3d 141(A)] Decided on March 8, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.


Byron Bell, an infant under the age Natural 570613/08 Guardian ANJANETTE BELL, and ANJANETTE BELL individually, JASON GONZALEZ, an infant under the age of 18 years, by his Mother and Natural Guardian QUIMARA AGRON and QUIMARA AGRON, individually, ROSELINE JIMENEZ, an infant under the age of 18 years, by her Mother and Natural Guardian YOLANDA FERNANDEZ, and YOLANDA FERNANDEZ, individually, Plaintiffs-Respondents,

against

Jerry Charles and UNITED FLEET INC, -and- MICHAEL MOLINA and ARTURO A. MENDEZ, Defendants.

Defendants Jerry Charles and United Fleet Inc., as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), dated February 8, 2008, as denied their motion to dismiss the complaint of plaintiffs Gonzalez and Agron.

Per Curiam.

Order (Julia I. Rodriguez, J.), dated February 8, 2008, insofar as appealed from, affirmed, without costs.
Mindful that CPLR 3216 is "extremely forgiving of
litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), we find no abuse of discretion in the denial of defendants-appellants' motion to dismiss the complaint for failure to prosecute. Plaintiffs' counsel offered several persuasive reasons for the general pre-notice delay, and to the extent plaintiffs' failure to timely respond to the 90-day notice was attributable to counsel's neglect, the species of law office failure here involved should not defeat the rights of the injured infants on whose behalf the action was brought. Moreover, a credibly meritorious claim can be gleaned from the record and movants allege no particular prejudice from the delay [*2](see Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 08, 2010