Baczkowski v. D.A. Collins Construction Co.

Spain, J. (dissenting).

We respectfully dissent. According to CPLR 3216 (e), Supreme Court has the discretionary power to dismiss an action for failure to file a note of issue upon the passage of 90 days from the date plaintiff was served with a written demand to serve and file a note of issue (see, Athanasiou v Esposito, 212 AD2d 878, 879, lv denied 85 NY2d 809). Such dismissal is not permitted, however, if plaintiff can demonstrate a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]), especially in view of the "strong policy favoring disposition of…