Chrysostomou v Alladin

[*1] Chrysostomou v Alladin 2009 NY Slip Op 51902(U) [24 Misc 3d 1247(A)] Decided on September 9, 2009 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2009
Supreme Court, Richmond County

Phivos Chrysostomou, Plaintiff,

against

Rhonda M. Alladin, and ELRAC, INC., Defendants.



11603/04

Philip G. Minardo, J.

Plaintiff Phivos Chrysostomou moves, inter alia, to restore this matter to the trial calendar pursuant to CPLR 3404, 5015, and section 202.21(f) of the Uniform Rules for New York State Trial Courts (22 NYCRR 202.21[f]). Defendants Rhonda M. Alladin and Elrac, Inc. (hereafter collectively "Elrac") oppose the motion.

Plaintiff commenced this action to recover damages for personal injuries sustained in a motor vehicle accident that occurred on August 4, 2001 by the filing and service of a summons with complaint on or about September 24, 2003. Issue was joined by the service of an answer on or about November 24, 2003. After filing a note of issue on April 6, 2006, the case was scheduled for the trial to begin on June 4, 2007. However, defendants moved by order to show cause to strike the action from the trial calendar, among other relief, because of outstanding discovery. The plaintiff was also undergoing additional surgery to his right shoulder, which he alleges was caused by the incident that is the subject of this lawsuit. As a result of this, the Court officially marked "off" the case from the trial calendar. At the same time, the Court directed that all subpoenaed records be held for a period of one year before being disposed (see CPLR 3404). Now, some two years later, plaintiff moves to restore the action to the trial calendar.

In support of his application, plaintiff contends that the need for surgery on his right shoulder altered the nature of his claim for damages, thereby entitling defendants to additional discovery, including authorizations, a further examination before trial and a medical examination, all of which is now completed. Following an unspecified period of fruitless settlement negotiations, plaintiff asks the Court to restore the action to the trial calendar, and, has attached a certificate of readiness and his affidavit to the moving papers. In addition, plaintiff contends that the Court's action on June 4, 2007 was improper and that the note of issue should have been stricken thereby restoring the case to pre-note status. Finally, plaintiff, alleges that he has duly responded to all of defendants' discovery demands in a manner that obviated any possibility of prejudice. In this way, plaintiff claims to have made clear his intention not to abandon the action. [*2]

In opposition, Elrac notes that the action was automatically dismissed pursuant to CPLR 3404 when plaintiff failed to restore the case to the calendar within one year, and that the subpoenaed records were destroyed on August 18, 2008, approximately one year and two months after the matter was struck from the trial calendar. Elrac further contends that plaintiff has failed to make the necessary showing to allow this Court to vacate the dismissal, i.e., (1) a meritorious cause of action; (2) a reasonable excuse for the delay; (3) the absence of an intent to abandon; and (4) a lack of prejudice to the defendants (cf. CPLR 5015[a]; 22 NYCRR 202.21[f]). For all these reasons, Elrac contends that the motion must be denied.

As is relevant, CPLR 3404 provides that a post-note case in the Supreme Court which is marked "off" or struck from the calendar and not restored within one year shall be automatically deemed abandoned and dismissed for neglect to prosecute (Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661). These consequences are readily distinguishable from those cases wherein the note of issue has been vacated pending the completion of discovery (see CPLR 3126) where the action has been restored to pre-note status. Such cases do not result automatically in dismissal and the subsequent filing of a new note of issue does not require leave of the Court (see Lane v New York City Hous. Auth., 62 AD3d 961; Galati v C. Raimondo & Sons Constr. Co., Inc., 35 AD3d 886).

Here, where the Court never vacated the note of issue, CPLR 3126 has no application. The Court will now consider whether to vacate the dismissal pursuant to CPLR 3404.

It is well settled that a case marked "off" the trial calendar pursuant to CPLR 3404 and subsequently deemed dismissed after one year may be restored to the trial calendar where a plaintiff submits evidence demonstrating (1) the existence of a meritorious cause of action; (2) a reasonable excuse for the delay in prosecuting the action; (3) a lack of intent to abandon the action; and (4) a lack of prejudice to the defendants (see Strancewilko v Martin, 50 AD3d 671; Williams v D'Angelo, 24 AD3d 538; Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490).

As applied to this case, it is the opinion of the Court that restoration of the action is warranted, as movant has satisfied all of the necessary criteria and demonstrated the existence of other exceptional circumstances which would justify such relief (see e.g. Bayon v Nardella, 296 AD2d 364, 365). It is conceded that plaintiff continued to supply extensive discovery materials to defendants and engaged in settlement negotiations after the case had been marked "off" the calendar. The defendants, however, contend this case should nevertheless be deemed abandoned because the further deposition of plaintiff was held on January 8, 2008 and the additional orthopedic and neurological examinations of plaintiff were held on February 12, 2008 and February 21. 2008, respectively. Elrac contends that plaintiff has tarried for over a year after discovery was complete before making this application, and that the accident itself occurred some eight years ago. This combination could easily be held to constitute some evidence of an intent to abandon, and the extent of the delay could easily effect witnesses' recollection of the incident. However, the defendants concede settlement negotiations were ongoing at least to the end of March 2009. This instant application was only three (3) months later. While all subpoenaed records produced for the trial have since been disposed by order of the Court the defendants have made no effort to show that they are not available or incapable of reconstruction. Under these circumstances, the defendants have failed to show, at a minimum, that they would be prejudiced by the delay. [*3]

The Court finds the plaintiff has demonstrated a reasonable excuse for his protracted delay in moving to restore, and the existence of a meritorious cause of action. The affidavit attached to plaintiff's moving papers demonstrates that he has a meritorious case. Further, medical evidence of a "serious injury" within the meaning of Insurance Law § 5102(d) is not required to demonstrate the meritorious nature of the plaintiff's cause of action. (See LeBlanc v Budman, 18 AD3d 718 [2nd Dept. 2005]),

In the interest of justice and to further the general policy of the judicial system to have cases decided on the merits, the plaintiff's motion to restore the action to the trial calendar is granted.

The Clerk is directed to schedule this matter on the Jury Coordinating calendar for October 5, 2009 to select a trial date.

This shall constitute the decision and order of the Court.

Clerk to notify.

ENTER,

s/Philip G. MinardoJ.S.C.

Dated: September 9, 2009