Daniels v Millar El. Indus., Inc.

[*1] Daniels v Millar El. Indus., Inc. 2006 NY Slip Op 51822(U) [13 Misc 3d 1214(A)] Decided on August 21, 2006 Supreme Court, Kings County Balter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2006
Supreme Court, Kings County

Terry Daniels, Plaintiff,

against

Millar Elevator Industries, Inc., Defendant.



28379/90

Bruce M. Balter, J.

Plaintiff moves for an Order granting leave to reargue or renew an Order of this Court predicated upon a "marking off" of this proceeding; and, upon such reargument and/or renewal, restoring this action to Active Status.

The underlying action is for personal injuries allegedly sustained in an elevator maintained by Millar Elevators, Inc., (hereinafter "Millar") located at the Marriot Marquis Hotel, Inc., (hereinafter "Marriot") on December 5, 1988.

PROCEDURAL HISTORY

On November 17, 1989, a Summons and Complaint is served upon defendant Millar. Issue is joined by way of a Verified Answer on January 18, 1990.

On January 25, 1990, A Request for Judicial Intervention ("RJI") is filed by defendant Millar, in which defendant purports:" plaintiff has yet to furnish discovery responses".

On December 19, 1990, by way of motion, defendant Millar moves for an Order to Compel, at which time Justice Joseph B. Williams orders plaintiff to respond to discovery demands within thirty days of the order.

On February 27, 1991, plaintiff serves defendant with a Verified Bill of Particulars.

On March 22, 1991, defendant serves response to plaintiff's discovery demands.

On March 25, 1991, defendant sends a letter to plaintiff requesting outstanding discovery.

On February 20, 1992, plaintiff allegedly serves defendant with a Note of Issue and Certificate of Readiness.[FN1]

On September 16, 1992, the matter is marked "off" on the call of the calendar by Justice Leonard E. Yoswein; as the matter is not restored within one year, on September 17, 1993, the action is deemed abandoned and dismissed without costs for neglect to prosecute. By an Order of the Court dated February 17, 1994, the matter is dismissed on the aforesaid grounds.

On June 23, 1992, defendant Millar serves a Third-Party Complaint against third party defendant Marriot, who on November 16, 1992 interposes an Answer.

On March 3, 1994. Defendant Millar serves Notice of Entry with Order of Justice Yoswein on the

parties.

On March 20, 1997, by way of a letter to the Court clerk, counsel for plaintiff writes: "Please accept this letter as a notification of our application to reactivate this matter. This matter is still active".

Plaintiff subsequently files a Request for Preliminary Conference on April 10, 1997.

On May 28, 1997, a consent to change defendant's attorney by Amon & Sabatini to Sonageri & Fallon, LLC., is filed.

On June 24, 1997, the Court issues a preliminary conference order. [*2]

On July 21, 1997, by way of motion, defendant/third party plaintiff Millar moves for an Order pursuant to CPLR § 3404 deeming plaintiff's case abandoned and dismissed for neglect to prosecute.

On April 2, 1998, the Court grants said motion, and the matter is dismissed.[FN2]

On February 28, 2006, by way of motion, plaintiff moves for an Order granting leave to reargue or renew an Order of this Court predicated upon a "marking off" of this proceeding; and upon such reargument and or/renewal restoring this action to Active Status. [FN3]

APPLICABLE STATUTES AND CASE LAW

CPLR §3404 "Dismissal of abandoned cases" states:



"A case in the supreme court or a county court marked

off' or struck from the calendar or unanswered on a

clerk's calendar call, and not restored within one year

thereafter, shall be deemed abandoned and shall be

dismissed without costs for neglect to prosecute.

The clerk shall make an appropriate entry without

the necessity of an order".

CPLR § 2221 (d) "motion affecting prior order" states:

"A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly [*3]

overlooked or misapprehended by the court in

determining the prior motion, but shall not include

any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a

copy of the order determining the prior motion and

written notice of its entr[y]".



CPLR §2221 (e) "motion affecting prior order" states:

" A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered

on the prior motion that would change the prior

determination or shall demonstrate that there has

been a change in the law that would change the

prior determination; and

3. shall contain reasonable justification for the failure

to present such facts on the prior motion".

CPLR §2004 "Extensions of time generally" states:

"Except where otherwise expressly prescribed by

law, the court may extend the time fixed by any statute,

rule or order for doing any act, upon such terms as may

be just and upon good cause shown, whether the

application for extension is made before or after the

expiration of the time fixed".

The Appellate Division, Second Department has held that it is improper for CPLR §3404 to apply to pre-note of issue cases and should be reserved strictly for cases that have reached the trial calendar. Lopez v. Imperial Delivery Service, Inc., 282 AD2d 190; 725 NYS2d 57 (2001). (See Basetti v. Nour, 287 AD2d 126, 731 NYS2d 35 (2001); Hemberger v. Jamaica Hospital, 306 AD2d 244, 761 NYS2d 252 (2003);Millien v. Millar Elevator Industries, Inc., 5 AD3d 641, 774 NYS2d 764 (2004); 123X Corp. v. McKenzie, 7 AD3d 769, 776 NYS2d 893 (2004); Northpark Associates, L.P., v. S.H.C. Mergers, Inc., 8 AD3d 642, 779 NYS2d 549 (2004);Auguste v. Linden Gardens Condominuim, 8 AD3d 414, 778 NYS2d 509 (2004)).

The Court in Lopez states: "It is possible that a case marked off pursuant to CPLR §3404, and subsequently dismissed after one year, could be restored even after several years of inactivity, assuming the plaintiff could demonstrate the merit of the action, a reasonable excuse for the delay, lack of intent to abandon the action and lack of prejudice to the nonmoving party". (See further Yousian v. New York Med. Ctr. Hosp. Of Queens, 277 Ad2d 449, 716 NYS2d 695; Cruz v. Volkswagen of Am., 277 AD2d 340, 716 NYS2d 104; McCarthy v. Bagner, 271 AD2d 509, 710 NYS2d 249). [*4]

For the restoration of a case to the trial calendar to be meaningful and appropriate, the moving party, at a minimum, should be required to demonstrate that a case is trial ready (Basetti v. Nour, 287 AD2d 126, 731 NYS2d 35 (2001).

ANALYSIS

The Court recognizes that from the time plaintiff served the Bill of Particulars, on February 27, 1991 to February 17, 1994, when the action was deemed abandoned and dismissed, plaintiff did little to prosecute or move this case forward to trial. When the plaintiff became aware that the matter was marked "off" it failed to properly move for an order by the Court to restore. When defendant Millar moved for an order dismissing the action, and, Justice Theodore T. Jones granted such motion, the matter was dismissed, on the basis that pursuant to CPLR§ 3404, the matter was marked off and not restored within one year, and as such, was deemed abandoned and dismissed. Plaintiff now moves pursuant to CPLR §2221 to reargue and/or renew said decision issued by the Court on April 2, 1998, on the basis that pursuant to Lopez id., the court should not have dismissed the proceeding.

It should first be noted that the plaintiff fails to state any basis that a new fact exists, that was previously not offered to the court to support it's application for renewal pursuant to CPLR §2221(e). Plaintiff's argument that as a matter of law the court erred, is not a new factual basis, Therefore, Plaintiff's motion, pursuant to CPLR §2221(e), is denied, as plaintiff fails to allege that any new facts exist to support such a motion.

Plaintiff's motion pursuant to CPLR §2221(d), to reargue the decision dismissing the action, which is brought some eight years after the date that the decision was rendered, is untimely, as it was not made "within thirty days after service of a copy of the order" rendered (See CPLR §2221(d)(3)).

Although plaintiff's application is untimely, pursuant to CPLR §2004, the Court may grant an extension of time to plaintiff, to have filed the motion to reargue or renew the decision dismissing the action. However, plaintiff has not supplied the Court with any "good cause" to warrant such an extension from April 2, 1998, especially considering that the Lopez decision was rendered by the Appellate Division in the year 2000. By admission, plaintiff's counsel is unable to account for much, if not all, of the delay in filing this motion.

As a matter of equity, the court is cognizant of the fact that both defendant Millar and third-party defendant Marriot would be prejudiced and burdened with the onus of having to locate evidence and witnesses, both of which are, in all probability, no longer available. Although the Court is mindful of the injuries alleged to have been sustained by the plaintiff in the underlying action, and is acutely aware that an individual's right to restitution may be denied, the Court finds that the plaintiff has failed to establish a basis for reargument or renewal of the Court's April 2, 1998 order, or for an extension pursuant to CPLR §2004, to bring said motion that is otherwise untimely.

After a careful review of the complete record, including the entire court file, the Court [*5]determines that plaintiff is not entitled to the relief requested pursuant to CPLR §2221(d), and CPLR §2221(e), and the court is unable to grant an extension of time pursuant to CPLR §2004.

Accordingly, it is ORDERED that plaintiff's motion is DENIED in its entirety.

August 21, 2006

ENTER,

J.S.C. Footnotes

Footnote 1:Defendant alleges that it was unable to respond, as of April 28, 2002, as no Note of Issue had been filed with the Court. The Court notes, that a careful review of the Court records fails to yield any documentation to substantiate that plaintiff did, in fact, file a Note of Issue.

Footnote 2: In a decision by Justice Theodore T. Jones, the Court determines that pursuant to CPLR § 3404, the matter, being marked off and not restored within one year, is deemed abandoned and dismissed. The Decision notes that pursuant to Section 205 (a), a new action must be commenced within six months of the termination of the initial action, and as such is now barred by the Statute of Limitations.

Footnote 3: CPLR § 2221(a) states: "A Motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear i[t]". The Court notes that Justice Jones is currently the Administrative Judge of the Civil Term, Supreme Court Kings County; the former case inventory of Justice Jones has been assigned to Justice Balter.