
    Amanda C.S., Respondent, v Scott Stearns, Defendant, and Joseph Collea, as Principal of Ilion High School, et al., Appellants.
    (Appeal No. 1.)
    [853 NYS2d 771]
   Memorandum: Plaintiff commenced this action seeking damages allegedly resulting from an inappropriate sexual relationship with her high school guidance counselor, defendant Scott Stearns. Defendants-appellants (defendants) moved to dismiss the complaint against them pursuant to CPLR 3216, for failure to prosecute. We conclude under the circumstances of this case that Supreme Court did not abuse its discretion in denying defendants’ motion on the condition that plaintiff complete pretrial discovery and file a note of issue and certificate of readiness for trial by a date certain. Even assuming, arguendo, that plaintiff failed to establish a justifiable excuse for any delay and a meritorious cause of action upon failing to comply with defendants’ 90-day demand (see CPLR 3216 [e]), we note that “[a] court retains discretion to deny a motion to dismiss pursuant to CPLR 3216 even [under those circumstances]” (Rust v Turgeon, 295 AD2d 962, 963 [2002]; see Strathearn v Star Land & Dev. Co., LLC, 28 AD3d 1250 [2006]; Restaino v Capicotto, 26 AD3d 771 [2006]; see generally Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]). We further note that “ ‘[t]here is no parallel between the circumstances of the instant case and those where CPLR 3216 dismissals have been justified based on patterns of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution, and lack of any tenable excuse for such delay’ ” (Davis v Goodsell, 6 AD3d 382, 384 [2004]). Present—Hurlbutt, J.P., Smith, Centra, Green and Gorski, JJ.  