Caggiano v. Glengariff Corp. , 720 N.Y.S.2d 833 ( 2001 )

—In an action, inter alia, for a judgment declaring that the plaintiffs have a prescriptive easement over a certain portion of real property owned by the defendant Glengariff Corporation, the defendant Glengariff Corporation appeals from so much of an order of the Supreme Court, Nassau County (Adams, J.), dated August 4, 2000, as denied its motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it for neglect to prosecute and pursuant to CPLR 3126 to strike the plaintiffs’ reply to its counterclaim for the failure to proceed with discovery.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

We agree with the Supreme Court that dismissal of the complaint pursuant to CPLR 3216 for neglect to prosecute is not warranted. The plaintiffs demonstrated a justifiable excuse for their failure to properly respond to the 90-day notice, and also demonstrated a meritorious cause of action (see, Wynne v Wagner, 262 AD2d 556; Roussodimou v Zafiriadis, 238 AD2d 568; Papadopoulas v R.B. Supply Corp., 152 AD2d 552).

Furthermore, there is no basis upon which to strike the plaintiff’s reply to the counterclaim pursuant to CPLR 3126. The Supreme Court properly exercised its discretion in directing a conference in lieu of the more drastic relief demanded by the defendant. Bracken, Acting P. J., Santucci, Altman and Florio, JJ., concur.