Budhram v American Dental Ctrs.
Annotate this CaseDecided on February 7, 2005
Civil Court, Kings County
Kowsil Budhram, Plaintiff,
against
American Dental Centers, DR. RAUTA, DR. KAUSHIK, DR. SHANDLER, and JOHN DOE, Intended to represent any other dentist who treated the plaintiff at AMERICAN DENTAL CENTERS, Defendants.
6431/98
Eileen N. Nadelson, J.
Plaintiff instituted this dental malpractice action in the Supreme Court in Kings County in 1996. At the time the action was commenced Plaintiff was represented by counsel. The Supreme Court eventually transferred the case to the Civil Court, Kings County, pursuant to the provisions of section 325(d) of the CPLR.
By the time the matter was transferred to the Civil Court, plaintiff was no longer represented by counsel and the action was placed on the calendar reserved for self-represented litigants. At the court appearance Plaintiff stated that she was not prepared, at that time, to proceed with jury selection, and the matter was "marked off" the calendar by the presiding judge of the part on September 10, 2003.
Defendants American Dental Centers, Dr. Rauta, and Dr. Kausik all moved to enter judgment dismissing the action on the grounds that the matter has not been restored to the trial calendar within one year of being marked off. In response, Plaintiff submitted a notarized letter [*2]indicating that she is unable to leave her house unless someone accompanies her and that she has been seeking an attorney to represent her in order to continue the action. This letter has attached to it a letter from a physician that states that Plaintiff is under doctor's care and suffers from neurological seizures and Temporo Mondiular Joint Dysfunction.
Section 3404 of the CPLR, one of the statutory provisions upon which Defendants base this motion, has been found to be inapplicable to Civil Court cases. This is so because of the express language of the statute which specifies that section 3404 of the CPLR applies only to Supreme Court and County Court cases. LaFredo v. CMC Occupational Health Services, 189 Misc 2d 781, 735 N.Y.S.2d 909 (App. Term, 2d Dept. 2001), Alpert v. Wolf, 194 Misc 2d 126, 751 N.Y.S.2d 707 (New York County 2002).
However, section 3216 of the CPLR identifies the requirements that must be met for a party who is seeking dismissal of an action for want of prosecution in proceedings that do not come within the purview of CPLR 3404. This section of the CPLR states that, to succeed in such a motion to dismiss, the party seeking dismissal must demonstrate the following:
1. The issue has been joined for at least one year, and
2. The defendant must serve a demand on the plaintiff to resume prosecution and file a
note of issue or notice of trial within 90 days.
In the case at bar, although issue was joined on February 29, 1996, when a verified answer was filed on behalf of one of the Defendants, Defendants have failed to serve Plaintiff with a 90-day demand to file a note of issue. Pursuant to the provisions of CPLR 3216, no motion to dismiss for failure to prosecute may be made by a defendant unless the defendant has first served the plaintiff with a demand that he or she file a note of issue. Chase v. Scavuzzo, 87 NY2d 228, 638 N.Y.S.2d 587 (1995). Indeed, CPLR 3216 expressly and unequivocally precludes such dismissal unless the party seeking dismissal shall have served a written demand by registered or certified mail requiring the party against whom dismissal is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand. Strasser v. Prudential Securities, Inc., 2 AD3d 239, 769 N.Y.S.2d 247 (1st Dept. 2003).
Additionally, from an equitable standpoint, any delay in the resumption of prosecution in the instant case does not appear to have been deliberate, which would influence the court to deny a motion to dismiss. Rather, the delay appears to have been occasioned by Plaintiff's ill health and her attempt to retain new counsel to continue her lawsuit. See Fanning v. Freedman, 2004 NY Slip Op. 51752U, 2004 NY Misc. Lexis 2903 (Nassau County 2004).
Therefore, based on the foregoing, Defendants motion to dismiss for failure to prosecute is denied.
[*3]Dated: February 7, 2005
__________________________
EILEEN N. NADELSON, J.C.C.
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