Padilla v L. Riso & Sons Co., Inc.

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Padilla v L. Riso & Sons Co., Inc. 2019 NY Slip Op 33329(U) October 31, 2019 Supreme Court, Kings County Docket Number: 509093/2019 Judge: Peter P. Sweeney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 11 INDEX NO. 509093/2019 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------x Index No.: 509093/2019 Motion Date: 10-7- 1~ Mot. Cal. No.: 40 ANA PADILLA, MIQUEL MARTEL, HUMBERTO CALERO and MADELINE PAD ILLA, Plaintiffs, -against- DECISION/ORDER L. RISO & SONS CO., INC., Defendant. ------------------------------------------------------------------------x The following papers numbered 1 to 3 were read on this motion: Papers: Numbered: ,...._, Notice of Motion/Order to Show Cause Affidavits/ Affirmations/Exhibits/Memos of Law.................. . 1 Answering Affirmations/Affidavits/Exhibits/Memos of Law .......... .. 2 Reply Affirmations/Affidavits/Exhibits/Memos of Law..... .... .......... .. 3 Other................................................................................................... . C:;) ~-, ::e: C> ~ · ·; ·. I co . :::·. - -· ~ ; . .. ~- C.:J the defendant, L. RISO & SONS CO., INC., moves to dismiss the action as untimely pursuant to CPLR § 214 since it was not commenced within three years of the date of the occurrence. The plaintiff opposes the motion claiming that since the action was commenced within six months of the dismissal of the action, it was timely under CPLR 205(a) 1• 1 CPLR 205 provides: (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the -1 - 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 11 INDEX NO. 509093/2019 RECEIVED NYSCEF: 11/08/2019 The occurrence giving rise to. tl1is action occurred on August 29, 2011. Plaintiff timely co111rnenced an action agai11st the defendant arising out of the occtrrrence in 2013. By i1otice.of motion dated December 11, 2018, the defendm1t moved to dismiss tl1e action pursuant to CPLR 3126 due to plaiI1tiffs alleged failtrre to con1ply with a 90 day notice and to provide outstanding discovery. Defendm1t mailed the 90 day notice to plaintiff's cou11sel on October 17, 2017 demanding that the plai11tiff"restore the case" (the action \Vas apparently marked otf calendar on October 14, 2016) and that all outstandi11g discovery be provided. Tl1e defe11dant re-se11t the same notice by Certified Mail, R.R.R. on October 23, 2017. The 90 day notice did not de1nand, as CPLR 3126(b)(3) requires that the plaihtiff "serve and file a note of iss11e within ninety days after receipt of [the] demand" nor did it state that plaintiff's default in complying with the demand would "serve as a basis for a motion by the [defe11dant]" for dismissal ''for unreasonably neglecting to proceed." Pursuant to t11e order of Jt1stice King dated April 10, 2019, the motion was granted. In her order, Justice King did not state the basis for the dismissal, nor did she set forth any specific conduct constituting neglect demonstrating a general pattern of delay in proceeding with the plaintiff dies, and the cause of action survives, his or l1er executor or admi11istrator, may comme11ce a new action upon the same transaction or occurrence ·or series of transactions or occurrences within six montl1s after the te1mination provided that the new action would have b-een timely conunenced at the time of comme11cement of the prior action and that service upon defendant is effected \Vithin sucl1 six-montl1 period. Where a dismissal is one for neglect to prosecute tl1e action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge sl1all set forth on t11e record the specific conduct constituti11g the neglect1 \\'hich conduct shall demonstrate a general pattern of delay in proceeding \Vith the litigation. -2- 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 11 INDEX NO. 509093/2019 RECEIVED NYSCEF: 11/08/2019 litigation as CPLR 205(a) now requires. 2 On April 29, 2019, well within six mo11ths oftl1e dismissal of the action, the plaintiff commenced tl1is instant action which arises out of the sa1ne occlrrrence and alleges the same causes of action. Defendant contends that even though J11stice J(ing did not state in her order wl1y the action was dismissed, it is clear that the dismissal ..,,,.as based upon a failure to prosecute and CPLR 205(a) is therefore inap·plicable. Plaintiffs contend that since Justice King's order is silent as to why the action was dis1nissed, plaintiffs \Vere within their rigl1ts to reco1nmence the action withi11 the six 1nonth period provided for in CPLR 205(a) even tho11gh the action was commenced more than three years following the occurrence. In Sokoloffv. Schor, No. 100056/16, 2019 WL 3938204 [2nd Dep't 2019], it was recently held that since CPLR 205(a) requires that in dismissing actions for neglect of prosecution, courts must describe t11e pattern ·of conduct constituting the neglect a11d that absent such language in an order dismissing the action, a plaintiff is free to con1mence a subsequent action against the same defe11dant concerning the same transactions or occu1Tences within the six-month grace period of CPLR 205(a) (id. at 6). The Sokoloff Court further held that a later order from a different court cannot properly be used for setting forth the specific conduct constituting the neglect that led to the dismissal in t11e prior action in satisfaction of the statutory requirements of CPLR 205(a) (id. at 5). 2 Certain amendments to CPLR 205(a) becaine effective on July 7, 2008. Pursuant to these amendments, where a COltrt dismisses an action for neglect to prosecute under tl1e statute, the Court must "set forth on t11e record the specific condt1ct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation." -3- 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 11 INDEX NO. 509093/2019 RECEIVED NYSCEF: 11/08/2019 Since Justice King's order is silent as to why the prior action was dismissed, the commencement of this action on April 29, 2019, which was within six months of the dismissal of the action, was timely under CPLR 205(a). This Court is without authority to look behind Justice King' s order for the purpose of determining the basis for the dismissal. Accordingly, it is hereby ORDERED that defendant's motion to dismiss is DENIED. This constitutes the decision and order of the Court. Dated: October 31, 20 19 PETER P. SWEENEY, J.S.C. -4- 4 of 4

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