Barnard v. Tops Friendly Markets

Order unanimously affirmed, without costs. Memorandum: CPLR 3216 (subd [a]) authorizes a court to dismiss a complaint when it finds that a party has unreasonably neglected to prosecute his claim. It was incumbent upon plaintiff to offer a justifiable excuse for the almost 21-month delay between service of the demand to file a note of issue and the motion to dismiss the action. Plaintiff’s offered excuse that there was an appeal pending in a companion cause of action is unavailing. While the pendency of an appeal in some instances will excuse the delay in going forward (see Chuttick v Collins,…