Doolittle v Bronx Gardens LLC

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Doolittle v Bronx Gardens LLC 2021 NY Slip Op 33032(U) December 1, 2021 Supreme Court, Bronx County Docket Number: Index No. 22355 /2017E Judge: Theresa M. Ciccotto 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] BRONX COUNTY CLERK 12/03/2021 11:39 AM INDEX NO. 22355/2017E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 12/03/2021 At IAS Part 22 of the Supreme Court of the State of New York, held in and for Bronx County, on the I st day of December, 2021. PRESE T: HO . THERESA M . CICCOTTO Justice of the Supreme Court ------------------------------------------------------------------X TONI DOOLITTLE, Index No. 22355 /20 l 7E Plainti ff, DECIS ION /ORDER -against- BRONX GARDENS LLC and 2016 REALTY, LLC, Motion Sequence #4 Defendant. ----------------------------------------------------------------- X RECI TAT ION , AS REQUI RE D BY CPLR§ 22 I9(a), OF THE PAPERS CON SID ERED IN THE REVIEW OF THIS MOTION. NUM BERED PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED ..... .... .. .... .... , ...... .,. . ..... 1-2 .... ... .... ANSWERING AFFIDA VJTS ... .................. ... .. ........ ..... ................... .. ........ .....' ..... 3 ............. . REPLY AFFIDAVITS ................. ... .. ...... .. ,.... . .. ...... .. ...... .. ..... .... ,.... ,..... ....... .. .. ..4 ...... .. ..... .. UPO THE FO REG O! G CITED PAPERS THE COURT Fl DS AS FOLLOWS: Defendants mo ve for an Order dismissing Plaintiffs Complaint with prejudice for failure to prosecute the action pursuant to CPLR § 3216. Plaintiff prose opposes. Back2round: Plaintiff commenced the instant action via the filing of a Summons and Complaint on March 27, 20 17. The Complaint alleged that she allegedly sustained injuries while on the premises of2016 Davidson Avenue, Bronx, New York. Defendants filed their Verified Answer with a Demand for 1 of 4 [*FILED: 2] BRONX COUNTY CLERK 12/03/2021 11:39 AM NYSCEF DOC. NO. 82 INDEX NO. 22355/2017E RECEIVED NYSCEF: 12/03/2021 a Verified Bill of Particulars and combined discovery demands on July 5, 2017. Defendants argue that"[ d]iscovery has been a problem since the outset of this case" (Motion, p. 2, ~5). They give a recitation of events which are supported by annexed exhibits. On September 15, 2017, and November 1, 2017, Defendants' attorney sent letters to Plaintiffs then counsel , The Felicetti Law Firm, reminding same that discovery was outstanding. A Preliminary Conference Order was issued on March 27, 2018, however, discovery remained outstanding. Consequently, Defendants filed a discovery motion on or about May 16, 2018. Justice Laura Douglas addressed the motion and included an Order directing service of outstanding discovery by July 20, 2018. Due to the continued failure to provide said d iscovery, Defendants filed another discovery motion on March 4, 2019. Justice Douglas rendered another Order resolving same on April 1, 20 19. As of today, significant discovery remains outstanding and depositions have not been conducted. On June 3, 2020, The Law Offices of Jason Tenenbaum, Esq. were substituted as attorneys of record for Plaintiff, replacing The Felicetti Law Firm. The parties engaged in settlement discussions and a sett lement was reached on July 16, 2020 in the amount of $9,000. Settlement papers were sent to Plaintiffs counsel s office but were never returned . On September 11 , 2020 the Law Office of Jason Tenenbaum, moved via Order To Show Cause, to be relieved as Plaintiffs counsel , citing a breakdown in communication. This Court granted said OSC on May 12, 2021 and gave Plaintiff sixty days from that date to retain counsel. Upon the sixty day expiration, Defendants served a 90 day notice on Plainti ff. Plaintiff pro se, submits an Affidavit in Opposition. However, same does not address the merits of the instant motion. Plaintiff claims that the Court should deny the instant motion because "They fi led this to [sic} soon came as regular mail [sic}" (Ajf in Opp., p. 1, ~2). She also claims that her home was broken into, that she was attacked ,and that she obtained a restraining order against 2 2 of 4 [*FILED: 3] BRONX COUNTY CLERK 12/03/2021 11:39 AM NYSCEF DOC. NO. 82 INDEX NO. 22355/2017E RECEIVED NYSCEF: 12/03/2021 the person "for me and my kids" (id.). She also claims that it too k her awhile to return home and when she arri ved, she observed a big package. She assumed that said package was a copy of the case. Plaintiff also claims that she did not know that she had to go to court or respond. She also claims that she did not realize that weekends were included in the counting of days, that she is starting a "new job orientation on the 22 nd " and is trying to get a lawyer. In their Reply, Defendants argue that CPLR 22 l 4(b) provides that: "answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time demands." Defendants argue that their moving papers were served thirty days before the motion's return date and Plaintiffs opposition was due to be served no later than November 15, 2021 . However, her opposition was not served until November 17, 2021 , two days late. Defendants argue that while Plaintiff alleges that she had not been home, and that when she returned home she did not realize what the package was, she fails to provide any dates when she returned home and noticed the package. As such, they argue that her excuse that she did not realize what the package was is an insufficient excuse. Moreover, they argue that even if the Court accepts Plaintiffs Opposition, she fails to demonstrate a justifiable delay in prosecution and a meritorious cause of action. They point out that it has been six months since the Order relieving her attorney as counsel and also four months after the court's imposed sixty day time frame, yet Plaintiff has failed to procure counsel. Defendants further argue that they have been prejudiced by Plaintiffs failure to prosecute this action. Conclusions of law : The nature and degree of the penalty to be imposed on a motion to dismiss for wan t of 3 3 of 4 [*FILED: 4] BRONX COUNTY CLERK 12/03/2021 11:39 AM NYSCEF DOC. NO. 82 INDEX NO. 22355/2017E RECEIVED NYSCEF: 12/03/2021 prosecution is a matter of discretion with the court (Palmenta v. Columbia Univ., 266 A.D.2d 90 , 91 [l5 1 Dept. 1999]; Espinoza v. 3 73-381 Park Ave. S., LLC, 68 A.D.3d 532, 532 [l51 Dept. 2009]). CPLR§ 3216 "authorizes the Supreme Court to dismiss a plaintiffs action based on the plaintiffs unreasonable neglect to proceed" (Davis v. Goodsell, 6 A.D.3d 382, 383 [2d Dept. 2004]). Dismissal is prohibited wherein the plaintiff can show justifiable excuse for the delay and merit to the action (see CPLR§ 3216(e); Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632 [2003]). In the case at bar, the Court finds that Plaintiffs opposition fails to indicate a valid reason why she has not yet retained counsel. Indeed, in addition to a written Order this Court had advised her via a Teams virtual conference, that she had sixty days to procure counsel. The Court notes that absolutely nothing has been done to move this case forward. Indeed , Defendants have been unduly prejudiced in that they have been compelled to make motions, send correspondence and appear in court, to no avail. Therefore, in accordance with the foregoing, it is hereby: ORDERED, that Defendants' motion to dismiss is GRA TED ; and it is further ORDERED, that Defendants are directed to serve a copy of this Order with Notice of Entry upon Plaintiff via first class mail as well as certified mail, return receipt requested, within thirty (30) days of this Order. This constitutes the decision and order of the Court. DATED: December 1, 2021 E TERED, Hon. Theresa M. Ciccotto JSC 4 4 of 4

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