Jemison v County of Nassau

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Jemison v County of Nassau 2012 NY Slip Op 33245(U) February 2, 2012 Supreme Court, New York County Docket Number: 9482/10 Judge: Denise L. Sher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE ~TATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 31 NASSAU COUNTY YOLANDA JEMISON, Plaintiffs, - against - Index No.: 9482/10 Motion Seq. Nos.: 01, 02 Motion Dates: 12/21/11 12/21/11 COUNTY OF NASSAU, NASSAU HEALTH CARE CORPORATION d/b/a NASSAU UNIVERSITY MEDICAL CENTER and HEMPSTEAD COMMUNITY HEALTH CENTER, Defendants. The followine papers have been read on this motion: Papers Numbered Notice of Motion (Seq. No. 01). Affirmation and Exhibits Notice of Cross-Motion (Seq. No. 02). Affidavit and Exhibits 1 2 Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendants move (Seq. No. 01), pursuant to CPLR § 3216, for an order dismissing plaintiffs Verified Complaint for her failure to obey a court order. Plaintiff opposes the motion and cross-moves (Seq. No. 02), pursuant to CPLR § 2004, for an order extending plaintiffs time to file a Note oflssue from the due date of November 14, 2011, to the date ofNovember 21, 2011, when the Note of Issue was actually filed. The above entitled action stems from personal injuries sustained by plaintiff as a result of defendants' alleged medical malpractice. Specifically, this action arises from defendants' [* 2] alleged departures in the diagnosis and management of pre-term PROM and resulting septicemia and congestive heart failure. Plaintiff commenced the present action with the filing and service of a Summons and Verified Complaint on or about May 6, 2010. Issue was joined on or about June 14, 2010. Defendants submit that, on August 16, 2011, all parties appeared·before this Court for a Certification Conference. On said date, a Certification Order was entered into by counsel for both plaintiff and defendants. See Defendants' Affirmation in Support Exhibit E. The Certification Order stated, "[t]his matter is hereby certified for trial and plaintiff(s) is directed to file a note of issue within 90 days. If plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court (CPLR 3216)." . Defendants contend that, upon information and belief, plaintiff has failed to timely file and serve the Note of Issue and the time to file expired without her so doing. Defendants' counsel adds that, on or about November 18, 2011, he received correspondence from plaintiffs counsel which included a Note oflssue that had been signed by plaintiffs counsel on November 16, 2011. See Defendants' Affirmation in Support Exhibit F. Defendants' counsel notes that nowhere on the aforementioned Note of Issue was there any indication that said document was filed with the appropriate clerk of Court. Defendants argue that, "in order for the plaintiff to have complied with the Certification Order, that he (sic) would have to actually have filed a note of issue, and then served a validly filed note of issue upon counsel for the Defendants herein, on or before November 14th, 2011. As plaintiff has not done this, it is respectfully submitted that as per the Certification Order, that the matter is 'deemed dismissed."' In opposition to defendants' motion, plaintiff cross-moves (Seq. No. 02), pursuant to -2- [* 3] CPLR § 2004, for an extension oftime to file the Note oflssue from the due date of November 14, 2011, to the date of November 21, 2011, when the Note oflssue was actually filed. Plaintiff argues that "[a]lthough defendants' motion is premised essentially on CPLR §3216, it is to be emphasized that a close reading of defendants' papers and exhibits on the present motion reflects that defendants do not claim that plaintiff, in the language.of CPLR §3216, has 'unreasonably' neglected to proceed or 'unreasonably' failed to serve· and file a note of issue." Plaintiff contends that there has not been a "general pattern of delay" in the instant matter. Plaintiff submits that the Note oflssue was served on November 16, 2011, and filed with the County Clerk ofNassau County on November 21, 2011, at 10:04 a.m. See Plaintiffs Affidavit Exhibit 1. Plaintiff argues that the very brief delay in filing cannot by any definition be deemed to have risen to the level of unreasonable neglect or failure (emphasis added). Plaintiff relies on the recent Court of Appeals decision, Cadichon v. Facelle, 18 N.Y.3d 230, 2011 WL 5827989 (2011), in support of her cross-motion. In the Cadichon v. Facelle matter, the Court held that "[a] case cannot be dismissed pursuant to CPLR 3216(a), however, unless a written demand is served upon the (sic) 'the party against whom relief is sought' in accordance with the statutory requirements, along with a statement 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])." It further states that "the July 7, 2008 amendment to CPLR 205(a), which as relevant here, states that where a dismissal is one for neglect to prosecute, 'the judge shall set forth on the record the specific conduct constituting neglect, which conduct shall demonstrate a general patter of delay in proceeding with the -3- [* 4] litigation,' .... " Pursuant to CPLR § 3216(b)(3), "[n]o 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: ... (3) The courtorparty seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring that 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 fay 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." In the instant matter, there is no evidence that plaintiff "unreasonably" neglected to proceed or "unreasonably" failed to file the Note of Issue. Plaintiff filed the Note of Issue on November 21, 2011, which was just seven days past the deadline established in the Certification Order. The Court is unable to set forth on the record any specific conduct on the part of plaintiff that constitutes neglect, which conduct could demonstrate a general patter of delay in proceeding with the litigation. Accordingly, the Court finds that defendants have not established grounds for dismissal pursuant to CPLR § 3216(a). Furthermore, based upon the above detailed ruling in Cadichon v. Face/le, the Court finds that defendants have not established grounds for dismissal pursuant to CPLR § 3216(b). The Court additionally notes that justice prefers that issues be resolved on the merits. See Ahmad v. Aniolowisk, 28 A.D.3d 692, 814 N.Y.S.2d 666 (2d Dept. 2006); Eichen v. George B. Jr. Realty, Inc., 154 A.D.2d 428, 547 N.Y.S.2d 236 (2d Dept. 1989). -4- [* 5] Based upon the above, defendants' motion (Seq. No. 01), pursuant to CPLR § 3216, for an order dismissing plaintiffs Verified Complaint for her failure to obey a court order is hereby DENIED. Plaintiffs cross-motion (Seq. No. 02), pursuant to CPLR § 2004, for an order extending plaintiff's time to file a Note oflssue from the due date of November 14, 2011, to the date of November 21, 2011, when the Note of Issue was actually filed is hereby GRANTED. This constitutes the Decision and Order of this Court. t.. ' ·-· . DISELSHER, A.J.S.C. \'........ I = / ENTERED FEB 06 2012 Dated: Mineola, New York February 2, 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE -5-

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