Samuel v Hilaire

[*1] Samuel v Hilaire 2009 NY Slip Op 50009(U) [22 Misc 3d 1103(A)] Decided on January 2, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 2, 2009
Supreme Court, Kings County

Mario Julio Samuel and ALEXIA ROSTANT, CO- ADMINISTRATORS OF THE ESTATE OF GLENDA SAMUEL and MARIO JULIO SAMUEL, Individually, Plaintiff,

against

Wendell Hilaire, JASON ANTOINE, LAINEL COLLYMORE and WESLEY COLLYMORE, Defendants.



41143/03



Counsel:

For Plaintiffs

Michael M. Szechter

The Yankowitz Law Firm, P.C.

175 East Shore Road

Great Neck, NY 11023

For Defendants (Hilaire and Antoine)

Cynthia P. Camacho, Esq.

Malapero & Prisco

295 Madison Avenue

New York, NY 10017

For Defedants (L. Collymore and W. Colleymore)

Abrams, Gorelick, Friedman, & Jacobsen, P.C.

1 Battery Park Plaza

NY, NY 10004

Francois A. Rivera, J.

Defendants Wendell Hilaire and Jason Antoine (hereinafter the moving defendants) jointly move under sequence number three and pursuant to CPLR §3216(e), for an order [*2]dismissing the plaintiff's action against them for failure to prosecute.

Plaintiffs cross move under sequence number four for an order pursuant to Estates, Powers and Trusts Law §5-4.6 approving a compromise of the instant action and permitting the Co-Administrators to execute general releases on behalf of the estate of Glenda Samuel, Mario Julio Samuel and Alexia Rostant; and directing that upon forwarding of said executed releases to the defendants, the defendants shall pay all sums payable under the order of compromise, within the time frames set forth in CPLR §5003 to the Co-Administrators' attorneys for placement in an interest bearing escrow account for the benefit of the distributees; or in the alternative, pursuant to CPLR §2004 extending any and all applicable time limits for plaintiffs in the instant action.

Defendants do not oppose that branch of plaintiffs' cross motion for an order pursuant to EPTL §5-4.6 approving a compromise of the instant action by Co-Administrators of the estate of Glenda Samuel, Mario Julio Samuel and Alexia Rostant. However, defendants oppose plaintiffs' application which seeks to have the settlement funds and, specifically, the balance for the benefit of the distributees placed in an interest bearing account pending the order of this court, and/or the filing of the petition and/or the order of the Surrogate's Court.

Motion Papers

Defendants' motion papers consists of an attorney's affirmation and annexed exhibits marked A through F. Exhibit A contains the following documents: the instant summons and complaint; co-defendants, Lainel and Wesley Collymore's verified answer and demand for a bill of particulars; and the moving defendant's verified answer and discovery demands. Their discovering demands include a request for a bill of particulars, a request for medical authorizations, notices for discovery and inspection, notices to produce names and addresses of parties, eyewitnesses and fact witnesses and notice to take the plaintiffs' deposition. Exhibit B is a letter dated May 24, 2005 from Travelers insurance to three law firms. Exhibit C is a ninety day notice pursuant to CPLR 3216 [b][3] dated March 27, 2007. Exhibit D is a letter dated April 2, 2007 from Jack Yankowitz to Cynthia P. Camacho. Exhibit E is a printout of a Kings County Xlerk's office e-law notification. Exhibit F is another ninety day notice to plaintiffs' counsel dated January 4, 2008.

Plaintiffs' cross motion consists of an attorney's affirmation and fourteen exhibits. Exhibit A is a copy of a police accident report. Exhibit B is a copy of the death certificate of Glenda Jean Mariana Rostant. Exhibit C is a copy of the Letters of Administration issued to Mario Julio Samuel and Alexia Rostant, co-administrators of the estate of Glenda Jean Mariana Rostant. Exhibit D is the same letter annexed by the moving defendants as exhibit B. Exhibit E is a letter dated June 1, 2005 from Alfa Vision Insurance tendering their policy limit of $100,000.00 with a suggestion that one third of the total policy limit be used to cover the claim of the estate of Glenda Samuel. Exhibit F is a copy of a letter dated October 16, 2003, from Direct Adjusting Company, Inc. to plaintiff's counsel offering a proposed settlement. Exhibit G is a letter from Travelers dated June 11, 2008 to plaintiff's counsel pertaining to a proposed settlement. Exhibit H is a copy of the proposed petition to the surrogate's court for leave to compromise a cause of action of the estate of Glenda Smith. Exhibit I is a letter dated July 31, 2007 from plaintiff's counsel to plaintiff Alexia Rostant seeking certain information. Exhibit J is a copy of an affidavit from Gary Tashlitsky, an employee of plaintiff's counsel. Exhibit K is a [*3]copy of a retainer statement from Jack Yankowitz. Exhibit L is a copy of text of EPTL §5-4.6. Exhibit M is a copy of an affidavit from plaintiff Mario Julio Samuel. Exhibit N is a copy of an affidavit from plaintiff Alexia Rostant.

Defendants' partial opposition to plaintiffs' cross motion contains an attorney's affirmation.

LAW AND APPLICATION

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 (CPLR 3216[a]).

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 ninety 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 (CPLR 3216 [b][3]).

As set forth in by the New York State Court of Appeals in Di Simone v. Good Samaritan Hospital, 100 NY2d 632 [2003], CPLR 3216 is not to be applied rigidly. We have previously observed that CPLR 3216 "is extremely forgiving of litigation delay" (Di Simone v. Good Samaritan Hospital, 100 NY2d 632 [2003] citing Baczkoski v. Collins Const Co., 89 NY2d 499, 503 [1997]). If a party fails to comply with a 90-day demand to serve and file a note of issue, but demonstrates a "justifiable excuse for the delay and a good and meritorious cause of action," the trial court may not dismiss the action (Di Simone v. Good Samaritan Hospital, supra.

CPLR 3216 "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Primiano v. Ginsberg, 55 AD3d 709 [2nd Dept 2008]). If a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (Id).

EPTL § 5-4.6 Application to compromise action (a) Within sixty days of the application of an administrator appointed under 5-4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court shall, after inquiry into the merits of the action and the amount of damages proposed as a compromise either disapprove the application or approve in writing a compromise for such amount as it shall determine to be adequate including approval of attorneys fees and other payable expenses as set forth below, and shall order the defendant to pay all sums payable under the order of compromise, within the time frames set forth in section five thousand three-a of the civil practice law and rules, to the attorney for the administrator or personal representative for placement in an interest bearing escrow account for the benefit of the distributees.

Section 207.38 of the Uniform Rules of the Surrogate's Court specifically pertains to the Compromises of wrongful death claims and provides in pertinent part as follows: (a) Upon any application for leave to compromise a claim for wrongful death or personal [*4]injuries, or both, the petition and the supporting affidavits shall set forth the time, place and manner in which the decedent sustained the injuries, and a complete statement of all such facts as would justify the granting of the application. If the cause of action did not arise under the laws of the State of New York, the laws of the jurisdiction under which said cause of action arose must be established to the satisfaction of the court.

DISCUSSION

The first problem presented is how the court should address the fact that the moving defendants issued two "90 day Notice" to the plaintiffs. The first is dated March 27, 2007, the second is dated January 4, 2008. There is no dispute that the plaintiffs' counsel advised the movants, in writing, that the March 27, 2007 notice was frivolous and should be withdrawn or be subject to a motion to strike and sanctions. The moving defendants were silent on whether they withdrew it. If they did not withdraw it, did they abandon it by choosing to send another "90 day Notice"?

In the absence of any explanation for the two issuances, and by the failure to provide any law on point, the Court deems the March 27, 2007 demand to have been either withdrawn or abandoned by the issuance of the January 4, 2008 demand.

Although the plaintiffs did not file a note of issue within the 90-day demand period, the facts negated any inference that they intended to abandon the action (see Davis v Goodsell, 6 AD3d 382, 384 [2nd Dept 2004]).

There is no dispute that the moving defendants and the plaintiffs engaged in a good faith effort to settle and did settle the wrongful death claim of the decedent Glenda Samuel. The settlement offer by the moving defendants' insurance carrier was accepted by the plaintiffs subject to a compromise order of the Kings County Surrogate. By letter dated June 11, 2008, moving defendants' insurance carrier advised plaintiffs' counsel that the $33,333.00 offered to settle the case required properly executed releases and stipulations of settlements. In light of the settlement posture of the case, there was no reason for the defendants to pursue their discovery demands and no reason for the plaintiff to file a note of issue because the matter had been settled. Settlement negotiations may be a reasonable excusable for failure to file a note of issue after a 90 day demand (see Miniotis v. Dugan Bros., 44 AD2d 708 [2nd Dept 1974]). Furthermore, plaintiffs' counsel explained the difficulties he encountered when he lost contact with Alexia Rostant, the co-administrator of the estate of Glenda Samuel, because she moved out of New York State. The affirmation of plaintiffs' counsel demonstrates a reasonable excuse for not filing a wrongful death compromise application until the instant cross-motion. The application of defendant movants to dismiss the complaint for want of prosecution is therefore denied.

The Plaintiffs' cross-motion seeks approval of defendants' proposed settlement offer and permission to execute general releases on behalf of the estate of Glenda Samuel, among other relief. The moving defendants do not oppose this part of plaintiffs' application but oppose the request for an order directing that they make payment to the Co-Administrators' attorneys to be held in an interest bearing escrow account.

Notwithstanding the lack of opposition to that part of plaintiffs' application, the merits of the proposed settlement needs further explaining and support. At a minimum, the court would [*5]require that the proposed compromise comply with the procedural requirements set forth in Section 207.38 of the Uniform Rules of the Surrogate's Court. The submission, in its current form, does not do so and therefore, lacks the detail needed to ascertain the reasonableness of the proposed settlement. To that end, the court orders plaintiffs to appear in Part 52 of this court on February 3, 2009 at 9:30 am for a hearing to review the merits of the proposed settlement.

The foregoing constitutes the decision and order of the court.

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J.S.C.