Moreno v 400 E. 58th St. Co.
Annotate this CaseDecided on April 21, 2005
Civil Court of the City of New York, New York County
MONIQUE MORENO, Plaintiff,
against
THE 400 EAST 58TH STREET CO. and DAVID FRANKEL REALTY, INC., Defendants.
523 TSN 2002
Plaintiff's counsel was Raskin & Kremins, LLP, 160 Broadway, New York, NY 10038, Tel: 212-587-3434, by Michael F. Kremins.
Counsel for both Defendants was Molod, Spitz & DeSantis, P.C., 104 West 40th Street, New York, NY 10018, Tel: 212-869-3200, by Salvatore J. DeSantis, Esq.
Shlomo S. Hagler, J.
Defendants move for an order dismissing plaintiff's complaint for the following reasons:
pursuant to 22 NYCRR §208.14(c), for plaintiff's failure to restore the action to the trial calendar within one year from the date it was stricken from the calendar on February 5, 2003; and
pursuant to CPLR §3126, for plaintiff's willful failure to comply with court-ordered discovery.
Plaintiff opposes the motion. However, plaintiff failed to cross-move to restore the action to the trial calendar.
Background
In or about June, 1999, plaintiff commenced this action in Supreme Court, New York County, to recover damages for personal injuries due to an alleged slip and fall at defendants' property located at 400 East 58th Street, New York, New York ("subject premises"). As a result of the fall, plaintiff allegedly sustained personal injuries such as cervical and lumbar radiculitis with pain from her neck to her buttocks and limited range of motion. In April, 2002, defendants interposed an answer to the complaint. (See, Exhibit "A" to the Motion). This action was later transferred to the Civil Court pursuant to CPLR §325(d).
In or about December, 2002, plaintiff filed a Notice of Trial and Certificate of Readiness ("Notice of Trial") seeking to place the action on the trial calendar. In or about January, 2003, defendants moved to vacate the Notice of Trial. On the return date of the motion, by decision and order dated February 5, 2003, the Hon. Joan Kenney, J.C.C. granted defendants' [*2]motion to the extent of directing plaintiff to comply with various outstanding discovery demands by March 1, 2003, and striking the action from the trial calendar. (See, Exhibit "B" to the Motion).
Failure To Comply With Court-Ordered Discovery
By letter dated October 7, 2003, defendants' counsel notified plaintiff's counsel that plaintiff failed to furnish defendants with an executed copy of plaintiff's deposition and various medical authorizations as per Judge Kenney's order. (See, Exhibit "C" to the Motion). Defendants also failed to move to compel plaintiff to comply with court-ordered discovery for almost two years.
However, plaintiff's counsel avers that plaintiff already produced a copy of the medical records along with duly executed authorizations for each facility at which plaintiff was treated on May 16, 2002. (See, Exhibit "B" to the Opposition Papers). Moreover, plaintiff reproduced the above mentioned medical records and authorizations to defendant and a duly executed transcript of plaintiff on March 8, 2005. (See, Exhibit "D" to the Opposition Papers). As such, it is uncontroverted that all discovery is now complete.
Inasmuch as plaintiff has now complied with all outstanding discovery and defendants delayed for almost two years to seek the relief herein, the harsh penalty of dismissal
of this action is unwarranted. Accordingly, the branch of defendants' motion to dismiss for failure to comply with outstanding discovery is denied as being moot.
Failure to Restore Action to Trial Calendar for More Than One Year
The courts have the inherent discretion to control their calendars and mark cases off-calendar when either or both parties are not trial-ready. The reason is glaringly obvious. Cases that are not ready should not be permitted to clog the trial-ready calendar. The courts' calendars are already overcrowded and those parties that are trial-ready should not suffer any resultant delay while those parties not ready for trial litigate other ancillary issues.
Of course, when either party is ready for trial, said party may restore the stricken matter to the trial calendar either by stipulation or by notice of motion within one year thereafter. Such a motion must "be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial." 22 NYCRR §208.14(c). The courts would then determine whether the movant demonstrated a meritorious cause of action, a reasonable excuse for the delay and the absence of prejudice to the opposing party. Ronsco Construction Co. v. 30 East 85th Street Co., 219 AD2d 281 (1st Dept 1996).
In this case, however, the matter was marked off-calendar in order to complete discovery and not due to any delay by the parties.
Defendants argue that this court should, nonetheless, apply the one-year rule set forth in 22 NYCRR §208.14(c) to restore actions stricken from the calendar. See, Centennial Restorations Co. v. Wyatt, 248 AD2d 193, 669 NYS2d 585 (1st Dept 1998) (a landlord-tenant proceeding marked off the calendar two times could not be restored pursuant to 22 NYCRR [*3]§208.14[d]). Plaintiff, on the other hand, argues that defendants are incorrect because subsection (c) is not applicable here. It appears that the intent of subsection (c) only relates to stricken cases due to malfeasance by one or more parties, not those cases marked off-calendar "pursuant to a motion under section 208.17 relating to the notice of trial and certificate of readiness." See, 22 NYCRR §208.14(a).
In such a situation, a motion to dismiss for failure to prosecute pursuant to CPLR §3216 would be the more appropriate remedy. CPLR §3216 states, in pertinent part, as follows:
Where a party unreasonably neglects to proceed generally in an
action or otherwise delays in the prosecution thereof against any
party who may be liable to a separate judgment, or unreasonably
fails to serve and file a note of issue, the court, on its own initiative
or upon motion, may dismiss the party's pleading on terms. Unless
the order specifies otherwise, the dismissal is not on the merits.
No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been
complied with:
Issue must have been joined in the action;
One year must have elapsed since the joinder of issue;
The court or party seeking such relief, as the case
may be, shall have served a written demand by
registered or certified mail requiring the party
against whom such relief 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, and further stating that the default
by the party upon whom such notice is served in
complying with such demand within said day period
will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably
neglecting to proceed (emphasis added).
Defendants have not served plaintiff with a written ninety day demand pursuant
to CPLR §3216(b)(3) notifying plaintiff of their intention to seek dismissal of the action for want of prosecution. Without such a predicate notice defendants should not be permitted to move to dismiss pursuant to CPLR §3216. See, Chase v. Scavuzzo, 87 NY2d 228, 638 NYS2d 587 (1995); Budhram v. American Dental Centers, NYLJ, February 18, 2005, at 17, col 2 (Civ Ct, [*4]NY Co, Nadelson, J.).
Moreover, the automatic dismissal provision of CPLR §3404 of abandoned cases which have been struck from the trial calendar and not restored within one year thereafter, is inapplicable to Civil Court cases. See, LaFredo v. CMC Occupational Health Services, P.C., 189 Misc2d 781, 735 NYS2d 909 (App Term 2d Dept, 2001); Alpert v. Wolf, 194 Misc2d 126, 751 NYS2d 707 (Civ Ct, NY Co, 2004) (Rakower, J.) aff'd 2 Misc 3d 140(A), 784 NYS2d 918 (App Term 1st Dept, 2004).
Assuming, arguendo, that 22 NYCRR §208.14(c) is applicable herein, this Court may apply the traditional three-pronged test (i.e., a reasonable excuse for the delay, a meritorious cause of action and the absence of prejudice to the opposing party) in deciding defendants' motion to dismiss.
It appears that plaintiff's excuse for failing to restore the action within one year after it was stricken from the calendar was law office failure. In other words, plaintiff's counsel failed to diary the date marking the one-year deadline for moving to restore the action. In addition, plaintiff appears to have a colorable meritorious cause of action based on her alleged slip and fall in the entrance of the subject premises due to the defendants' alleged negligence causing her personal injuries. (See, Exhibits "A" and "E" to the Opposition Papers). It appears that defendants also failed to demonstrate any prejudice resulting in plaintiff's delay in restoring the action to the trial calendar.
The balancing of the equities, therefore, appears to militate in favor of not dismissing this action on condition that plaintiff moves to restore the action to the trial calendar within 30 days of notice of entry of this decision and order. Inasmuch as plaintiff failed to cross-move to restore this action to the trial calendar, this Court cannot sua sponte restore the action and has not made a determination with respect to a prospective motion to restore this action to the trial calendar.
Conclusion
Based on the foregoing, this Court denies the balance of defendants' motion to dismiss pursuant to 22 NYCRR §208.14(c).
The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.
Dated:New York, New York /s/ Shlomo S. Hagler
April 21, 2005 Hon. Shlomo S. Hagler, J. C. C.
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