Sou Lou Enters., LLC v Gonzalez

[*1] Sou Lou Enters., LLC v Gonzalez 2013 NY Slip Op 52255(U) Decided on December 31, 2013 Supreme Court, Sullivan County Labuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2013
Supreme Court, Sullivan County

Sou Lou Enterprises, LLC, d/b/a THE REYNOLDS HOUSE, Plaintiff,

against

Chris Gonzalez, d/b/a CG HOME REPAIR, Defendant.



2251-10



Eric J. Groper, Esq.

541 Broadway

Post Office box 980

Monticello, NY 12701

Attorney for Plaintiff

Chris Gonzales

620 2nd Avenue

Troy, NY 12182

Defendant, pro se

Frank J. Labuda, J.

This matter comes before the Court on Defendant's motion to dismiss, pursuant to CPLR R.3216, for Plaintiff's failure to prosecute. Plaintiff filed a Summons with Notice and Verified Complaint, dated June 29, 2010, with the Sullivan County Clerk. The Summons and Complaint were personally served on Defendant on or about August 17, 2010. Defendant filed a Verified Answer on or about August 24, 2010. Defendant, after retaining counsel, subsequently served upon Plaintiff a Verified Counterclaim, dated June 14, 2011. Plaintiff sought arising from an alleged of breach of contract and negligence. Defendant's counterclaim sought damages for malicious prosecution and mental anguish. There is no indication from the submissions before this Court that either party sought a preliminary conference prior to Defendant's letter to the Court dated April 12, 2013.

In April, 2013, Defendant informed the Court by letter that he was having trouble communicating with his attorney, John V. Janusas, Esq., of the former Rourke, Fine & Janusas, and was unable to obtain a copy of his file from Brian Rourke, Esq., also a former partner of the now dissolved Rourke, Fine & Janusas. Defendant requested Court intervention. The Court [*2]scheduled a conference on the matter, with both sides present, in an effort to find out (1) why the case had stagnated for three years with no preliminary conference, discovery stipulation/order, motions or other activity, (2) what, if any, discovery had taken place, (3) why neither party had requested a preliminary conference for a discovery scheduling order and oversight by the Court, and (4) how to best proceed with relieving counsel if Defendant, in fact, wished to proceed as self represented.

Present at the May, 2013, conference were Eric J. Groper, Esq., Plaintiff's attorney, Brian P. Rourke, Esq., formerly of Rourke, Fine & Janusas, John V. Janusas, Esq., formerly of Rourke, Fine & Janusas, but still attorney of record for Defendant, Chris Gonzalez, the defendant, and Mr. and Mrs. Peter Gonzalez. Mr. Peter Gonzalez indicated he was present to assist his son, who he claimed has a learning disability/cognitive impairment.

After much discussion, it became readily apparent that due to numerous issues it would not be in anyone's interest for Mr. Janusas to continue to represent Defendant.[FN1] Contrary to Defendant's (and his parents') ongoing misunderstanding of the conference discussion and inaccurate affidavits submitted to the Court, the Court Attorney conducting the conference did not inform Defendant that Mr. Janusas was relieved as counsel effective immediately and that he could proceed pro se.[FN2] Rather, the Court Attorney informed Defendant that Mr. Janusas would be relieved as counsel as soon as Mr. Janusas made a motion on consent, or as soon as Defendant and Mr. Janusas submitted a stipulation. Neither of those actions occurred subsequent to the May, 2013, conference.[FN3] Subsequent to the conference, Defendant and his parents spoke with Mr. Groper, Plaintiff's attorney, who they claim gave them his business card.

Defendant, who mistakenly believed he was allowed to proceed pro se, attempted to correspond directly with Plaintiff's attorney, Mr. Groper after the May, 2013, conference, and served various documents on him, including notice required by CPLR R. 3216 (b)(3), and the within motion. All of these actions by Defendant were taken prior to this Court issuing any type of order relieving Mr. Janusas as counsel for Defendant, and therefore, Mr. Groper was reluctant to communicate directly with Defendant, as is evidenced by his correspondence with the Court.[FN4] [*3]

After the Court received additional correspondence from Defendant further indicating his and his parents' complete and ongoing misunderstanding of what transpired during the May, 2013, conference, the Court calendared the matter for a hearing on the record. At that hearing, which occurred on October 28, 2013, the Court, on motion by Mr. Janusas, relieved Mr. Janusas as counsel for Defendant, and gave Mr. Groper, Plaintiff's attorney, until December 18, 2013, to submit answering papers to Defendant's pending motion to dismiss. Mr. Groper filed an affirmation in opposition, dated December 6, 2013, to the within motion on December 13, 2013. Defendant submitted a reply, dated December 12, 2013, on December 16, 2013.

A motion to dismiss pursuant to CPLR R.3216 may be made on motion by a party or may be made on a court's own initiative. CPLR R.3216(a). Regardless of how consideration for dismissal comes before a court, three criteria must be satisfied: (b) 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:

(1) Issue must have been joined in the action;

(2) One year must have elapsed since the joinder of issue; (3) 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 R.3216(b).

CPLR R.3216 is an " extremely forgiving statute'" which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed.' Citations omitted. The statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a meritorious cause of action." Klein v. MTA-Long Island Bus, 61 AD3d 722, 723 [2nd Dept. 2009], citations omitted. Dismissal is only permissible in cases in which no note of issue was filed. Schmidt v. Mack, 46 AD3d 1205, 1206 [3rd Dept. 2007].

The Third Appellate Division has held that to defeat a motion to dismiss pursuant to CPLR R.3216, a "plaintiff[ ][was] required to proffer an excuse justifying the delay in filing the note of issue and proof that [her] causes of action had merit" Mrva v. Yavorski, 17 [*4]AD3d 918, 919, 793 N.Y.S.2d 599 [2005]; see CPLR 3216[e]. "[I]n evaluating the adequacy of the proffered excuse for [a] plaintiff's delay," the court must consider and weigh "the appropriate factors, including the history of the case, the extent of the delay, evidence of intent to abandon the case, undue prejudice to [the] defendant and the merits of the underlying claim" Schneider v. Meltzer, 266 AD2d 801, 802, 700 N.Y.S.2d 237 [1999]; see King v. Jordan, 243 AD2d 951, 953, 664 N.Y.S.2d 633 [1997]. Burchard v. City of Elmira, 52 AD3d 881 [3rd Dept. 2008].

In the case at bar, Plaintiff failed to pursue this matter for three years from the time Plaintiff filed and served the summons and complaint. The Court was unaware that the case was languishing until Defendant, out of frustration with his attorney, informed the Court that the matter had been pending without any progress for three years. To date, despite having received notice in July, 2013, pursuant to CPLR R. 3216(b)(3),[FN5] Plaintiff has not filed a Note of Issue. Schmidt v. Mack, supra. In its response to Defendant's within motion to dismiss, Plaintiff has failed to provide any excuse, let alone a justifiable one, for failure to pursue and prosecute this matter for three years, and provided no explanation to the Court at the October 28, 2013, conference. Klein v. MTA-Long Island Bus, supra.

Plaintiff's argument that it was not obligated to respond to Defendant's July 3, 2013, notice pursuant to CPLR R.3216 because Mr. Janusas still represented Defendant at that time is unpersuasive. Plaintiff's argument that everything Defendant served and filed prior to October 28, 2013, when the Court relieved Mr. Janusas as counsel should be declared a nullity is without merit and Plaintiff failed to provide any case or statutory law to support that argument. While Mr. Janusas still represented Defendant prior to October 28, 2013, Plaintiff's attorney was well aware of Defendant's ongoing communication issues with his attorney, Defendant's misunderstanding of the procedure to relieve his attorney, that Mr. Janusas was not going to take any further action in this matter after the May conference, that Mr. Janusas had failed to file a motion to be relieved as directed by the Court at the May conference, that Defendant was not going to sign the stipulation Mr. Janusas sent to him, and that Defendant obviously misunderstood the procedure involved with relieving counsel and therefore made repeated attempts to communicate directly with Plaintiff's attorney to move the case along or resolve the matter without his attorney. If nothing else, Plaintiff's attorney was presumably aware that he needed to file a Note of Issue within 90 days of the July 3, 2013, letter, which would have been in early October 2013.

Considering the history of this case, that issue was joined, that more than one year has passed since joinder of issue, Plaintiff's lack of pursuing the matter for three years from the time of filing and service, plaintiff's failure to file a Note of Issue within 90 days of the CPLR R.3216 demand, and the undue prejudice to Defendant in having a lawsuit pending against him for years, this Court is compelled to dismiss Plaintiff's complaint as well as Defendant's counterclaims. [*5]Burchard v. City of Elmira, supra. The Court need not consider whether Plaintiff has a meritorious claim, as Plaintiff has failed to provide any excuse for pursuing such claim for over three years. Klein v. MTA-Long Island Bus, supra. The dismissal is without prejudice.

Based on the foregoing, it is

ORDERED that Defendant's motion to dismiss pursuant to CPLR R.3216 is granted in its entirety, without prejudice; and it is further

ORDERED that Defendant's counterclaims are dismissed in their entirety.

This shall constitute the Court's Decision and Order.

DATED:December 31, 2013

Monticello, New York

____________________________________

Hon. Frank J. LaBuda

Acting Justice Supreme Court

Papers considered:

Notice/Motion to Dismiss, by Defendant, dated September 6, 2013

Affidavit in Support with Exhibits, by Defendant, dated September 6, 2013

Affirmation in Opposition with Exhibits, by Eric J. Groper, Esq., dated December 6, 2013

Reply Affidavit with Exhibits, by Defendant, dated December 12, 2013 Footnotes

Footnote 1:Defendant's main complaints were that his attorney failed to communicate with him and that his attorney took no action for three years to resolve the matter or have it dismissed.

Footnote 2:As has been repeatedly explained to Defendant and his parents, to no avail, the Court Attorney was without power or authority to issue any type of order.

Footnote 3:Although Defendant seemed to be in a great hurry to have Mr. Jasnusas relieved as counsel, he failed to sign the stipulation Mr. Janusas sent to him, and upon inquiry by the Court Attorney, Defendant provided no explanation for his apparent refusal to sign the stipulation, which would have allowed the Court to immediately issue an order.

Footnote 4:It soon became clear to the Court that neither Mr. Gonzalez nor his parents understood proper procedure (as they continued to insist the Court Attorney relieved Mr. Janusas as counsel) and that for reasons unknown to the Court, Defendant was not going to sign the stipulation relieving Mr. Janusas as counsel. It is also unknown why Mr. Janusas did not file a motion to be relieved.

Footnote 5:Defendant, by Certified Mail, dated and mailed July 3, 2013, to Attorney Groper, demanded that Plaintiff resume prosecution of the case, respond to discovery demands, and file a Note of Issue within 90 days.