## Facts

- George Baczkowski, employed by Kubricky Construction Corp., was injured at a work site after the brakes allegedly failed on a truck owned by D.A. Collins Construction Co., causing him to jump from the vehicle.
- Baczkowski sued Collins in negligence and strict products liability; Collins later impleaded Kubricky as a third-party defendant.
- After early depositions, the case saw extended inactivity for several years.
- Collins served a CPLR 3216 90-day demand directing Baczkowski to resume prosecution and file a note of issue within 90 days.
- Baczkowski failed to file a note of issue within the 90-day period, took no meaningful step to proceed, and did not submit written opposition when Collins moved to dismiss.
- Baczkowski filed a note of issue well after the demand expired, and the trial court issued a conditional order requiring a justifiable excuse and an affidavit of merit.
- Baczkowski responded with counsel’s affidavit describing discovery uncertainty and an alleged clerical filing problem, and relied on a deposition transcript rather than a separate affidavit of merit.

## Issues

1. Whether the plaintiff demonstrated a “justifiable excuse” for prolonged delay and for failing to comply with a CPLR 3216 90-day demand to file a note of issue and resume prosecution.
2. Whether, given the record, dismissal for neglect to prosecute under CPLR 3216 was required despite the trial court’s decision to excuse the default.

## Decision

- The Court of Appeals affirmed the Appellate Division’s order dismissing the complaint under CPLR 3216.
- The court held the plaintiff did not provide a timely, reasonable, and causally connected excuse for the extended inactivity and noncompliance with the 90-day demand.
- The court found counsel’s explanations—discovery uncertainty predating the demand and an office filing mishap—insufficient to excuse the delay.
- Because the excuse requirement was not met, dismissal was proper regardless of any asserted showing of merit.

## Legal Principles

- CPLR 3216 permits dismissal for neglect to prosecute when a plaintiff fails to proceed after service of a proper 90-day demand.
- To avoid dismissal under CPLR 3216, a plaintiff must show both (1) a justifiable excuse for the delay and (2) a meritorious cause of action, commonly supported by an affidavit of merit.
- An excuse must be concrete and tied to the relevant period of default; generalized references to discovery status or remote events do not justify noncompliance with a 90-day demand.
- Law office problems and clerical failures generally do not constitute a justifiable excuse where counsel retains responsibility for compliance with procedural requirements.
- Trial courts have discretion in applying CPLR 3216, but that discretion is constrained where the record shows persistent, unexcused delay and failure to respond meaningfully to the demand.

## Conclusion

The court upheld dismissal under CPLR 3216 because the plaintiff’s prolonged inactivity and failure to comply with a 90-day demand were not supported by a justifiable excuse, and the trial court’s leniency exceeded permissible bounds on this record.


Baczkowski v. D.A. Collins Constr. Co., 89 N.Y.2d 499 (1997)