DIAZ v. YUAN

Ordered that the order is affirmed insofar as appealed from, with costs.

"CPLR 3216 is, by its terms `extremely forgiving' in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed . . . While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action . . . such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" ( Davis v. Goodsell, 6 AD3d 382, 383-384; see Ferrara v. N.Y. Atl. Ry. Co., 25 AD3d 753). Here, the delay in filing a note of issue was brief — a matter of days — and there was no prejudice to the defendants. The delay was attributable to law office failure which may constitute a reasonable excuse ( see Santiago v. New York City Health Hosps. Corp., 10 AD3d 393). There was clearly no intent to abandon the action ( see Ferrara v. N.Y. Atl. Ry. Co., supra).

Under the circumstances, the denial of the motion to dismiss was a provident exercise of discretion.