Bernal v Morales

[*1] Bernal v Morales 2016 NY Slip Op 50100(U) Decided on January 29, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2016
Supreme Court, Kings County

Hilaria Silva Bernal, Plaintiff,

against

Antonio Morales, UNITED INDUSTRIES & CONSTRUCTION CORP., MORGAN CONSTRUCTION NY INC., and SANDS POINT HOLDING LLC, Defendants.



4193/12



Attorney for Defendant and Third Party-Plaintiff

Kelly A. McGee

Litchfield Cavo LLP

420 Lexington Avenue, Suite 2104

New York, NY 10170
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of the defendant Sands Point Holding, LLC (hereinafter Sands) and defendant/third-party plaintiff Morgan Construction NY Inc., (hereinafter Morgan) (Sands and Morgan hereinafter [*2]collectively referred to as the movants), filed on November 23, 2015, under motion sequence number nine for an order striking the complaint: (1) pursuant to CPLR 3126 for failure of plaintiff to respond to discovery demands or (2) pursuant to CPLR 3216 for failure to file a note of issue.

- Notice of Motion

Affirmation of good faith

- Affirmation in Support- Exhibits A - E

MOTION PAPERS

The movants' motion papers consists of an affirmation of good faith, an affirmation in support, and five exhibits labeled A through E. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a number of discovery demands made of the plaintiff. Exhibit C is a court order dated July 26, 2013, which granted Morgan's motion to compel the plaintiff to comply with its disclosure demands. Exhibit D is an order dated March 21, 2014 which granted the request of plaintiff's counsel to be relieved as counsel. Exhibit E contains a CPLR 3216 notice, an affidavit of service, and an International Federal Express receipt.

BACKGROUND

On February 7, 2012, Hilaria Silva Bernal (hereinafter Bernal) commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office (KCCO). By answer dated January 24, 2013, Morgan joined issue. By answer dated April 11, 2013, Sands joined issue. As of the date of the filing of the instant motion a note of issue has not been filed.

The instant action is an action for damages for personal injuries sustained as a result of an accident at or near 93-05 37th Avenue, Queens, New York. Bernal alleges in her complaint that on September 10, 2010 while she was walking on the sidewalk of 37th Avenue, she was struck and injured by a falling object due to the negligence of the defendants.

The Court has reviewed the minutes of the KCCO and has discovered the following facts.[FN1] By order to show cause filed on February 7, 2014, plaintiff's counsel sought to be relieved as counsel (hereinafter the order to show cause). Pursuant to CPLR 308 (5), the Court gave plaintiff's counsel permission to serve the order to show cause by certified mail return receipt requested and by International Federal Express addressed to the plaintiff at Avenida 16 Oriente No. 203 Puebla, Puebla, Mexico, Centro Historica 7200. Permission was granted based on counsel's sworn allegation that plaintiff had returned to that address in Mexico with a stated intention not to return and after he demonstrated that service pursuant to CPLR 308 (1), (2) and [*3](4) was not reasonably practicable.

By order dated March 21, 2014 (hereinafter the March 21, 2014 order), the Court granted plaintiff's counsel's request and stayed the action for 60 days to give the plaintiff an opportunity to obtain new counsel.

LAW AND APPLICATION

Motion to dismiss pursuant to CPLR 3126

The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court (see CPLR 3126 (3), Bates v Baez, 299 AD2d 382 [2nd Dept.2002]).

Part 202 of the Uniform Rules for the New York State Trial Courts at § 202.7 (a) and (c) provides in pertinent part as follows:

(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless they have been served and filed with the motion papers (1) a notice of motion and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

(c) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held.

This branch of the movant's motion is supported by an affirmation of good faith of their counsel Kelly A. McGee, Esq. (hereinafter McGee). Only the second and fourth paragraph of McGee's affirmation of good faith pertains to efforts she allegedly made to resolve the disclosure dispute. In the second paragraph she states"By a letter dated March 19, 2013 to Plaintiff's attorney and subsequently filed discovery motions that have resulted in orders annexed to the instant motion.(Exhibit C)[sic]" . In the fourth paragraph she states "Your affirmant has made efforts to resolve discovery issues without the intervention of the Court, but have been unable to resolve them".

McGee's affirmation lacks the specificity that is required by 22 NYCRR § 202.7 (c) (see Deutsch v Grunwald,110 AD3d 949 [2nd Dept 2013]). Accordingly, the motion to strike the complaint for failure to comply with discovery demands is denied.

Motion to dismiss pursuant to CPLR 3216

CPLR 3216 provides as follows:

Want of prosecution. (a) 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. (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 [*4]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.

The movants seek to dismiss the complaint pursuant to CPLR 3216 based on plaintiff's failure to prosecute the action. The movants have annexed their respective answers to the motion papers. Morgans' answer is dated January 24, 2013, and Sands' answer is dated April 11, 2013. The instant motion was filed on November 23, 2015, more than one year after the movants had joined issue. McGee's affirmation establishes that on August 20, 2014, she sent plaintiff the CPLR 3216, annexed as exhibit E to the motion, via International Federal Express addressed to Avenida 16 Oriente No. 203 Puebla, Puebla, Mexico, Centro Historica 7200. The address McGee used to send the CPLR 3216 notice was the exact same address that the plaintiff's prior counsel was permitted to use, pursuant to CPLR 308 (5), to serve the order to show cause to be relieved as counsel.

CPLR 3216 (a) (3) requires, among other things, that the notice be sent by registered or certified mail. In situations where the plaintiff has admitted to receipt of the 90-day notice the failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant's motion to dismiss for neglect to prosecute (Balancio v American Optical Corporation, 66 NY2d 750 [1985]). "It has even been held that Federal Express—and presumably, therefore, any overnight service—may be used instead of the usual U.S. mails. Taking this kind of liberty, however, in the face of a specific statutory instruction for registered or certified mail is not wise, and should in no circumstances be tried when the statute involved is prescribing service of process" (Siegal, Practice Commentaries, McKinney's Cons.Laws of NY Book 7B, CPLR C3216:17 [internal citations omitted]).

The CPLR 3216 notice contains the language required by the statute. In particular, it advises the plaintiff to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of the demand. It further advises that if plaintiff fails to comply with the demand within ninety days her failure to do so will be a basis for a motion to dismiss against her for unreasonably neglecting to proceed. In the instant matter, the plaintiff has not submitted opposition to the motion and therefore is not contesting receipt of the notice.

CPLR 3216 is an "extremely forgiving" statute (see Ramon v Zangari, 116 AD3d 753 [2nd Dept 2014]; citing Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997], which "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Ramon v Zangari, 116 AD3d 753 [2nd Dept 2014]; citing Davis v Goodsell, 6 AD3d 382, 383 [2nd Dept 2004]). In this instance, however, granting the movants' motion to dismiss is appropriate. Plaintiff has already expressed to her prior counsel her intention to return to Mexico with no intention of returning to the United States. [*5]Plaintiff's failure to oppose to the instant motion provides further evidences of her intention to abandon the instant action.

CONCLUSION

Sands and Morgan's joint motion to strike the complaint pursuant to CPLR 3126 based plaintiff's failure to respond to discovery demands is denied.

Sands and Morgan's joint motion joint to strike the complaint pursuant to CPLR 3216 for failure to prosecute the action is granted.

The foregoing constitutes the decision and order of this Court.

Enter: J.S.C. Footnotes

Footnote 1:The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup.2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).