Elhanafy v City of New York

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Elhanafy v City of New York 2022 NY Slip Op 32723(U) August 11, 2022 Supreme Court, New York County Docket Number: Index No. 158770/2014 Judge: Leslie Stroth 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. INDEX NO. 158770/2014 FILED: NEW YORK COUNTY CLERK 08/12/2022 12:31 PM NYSCEF DOC. NO. 169 RECEIVED NYSCEF: 08/12/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE STROTH PART 52 Justice ------------------- ----X MANAL ELHANAFY, ELSAID ARIF, INDEX NO. MOTION DATE 158770/2014 05/04/2022 Plaintiff, 004 MOTION SEQ. NO. - V - CITY OF-NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CHINATOWN PARTNERSHIP LOCAL DEVELOPMENT CORPORATION A/K/A CHINATOWN B.LD., TRIUMPH CONSTRUCTION CORP., S&M ENTERPRISES LLC A/K/A PERLBINDER HOLDINGS LLC,WON & HAR REALTY CORPORATION DECISION + ORDER ON MOTION Defendant. ----X The following e-filed documents, listed by NYSCEF document number (Motion 004) 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 163, 164, 165, 166, 167 we~e read on this motion to/for STRIKE PLEADINGS Defendant Triumph Construction Corp. (Triumph) moves to dismiss this negligence action for plaintiffs· alleged failure to prosecute, pursuant to CPLR 3216. The action arises out of an alleged trip and fall accident occurring on March 28, 2014 at 242 and 244 Canal Street, New York, New York, which allegedly caused injuries to plaintiff Manal Elhanafy (Ms. Elhanafy). Plaintiff Elsaid Arif (Mr. Arif), Elhanaty's husband. joins in the action and claims loss of consortium. Plaintiffs commenced this action by service of a summons and complaint on September 8, 2014. Triumph served its answer on November 5, 2015. Plaintiffs subsequently filed a supplemental summons and verified amended complaint to include Won & Har Realty Corporation as a defendant, to which.Triumph served an amended answer on November 13, 2014. On August ' 31, 2016, the Court relieved plaintiffs' counsel, and the matter was stayed for 90 days. On May 26, 2017, plaintiffs' deposition was conducted, at which Ms:Elhanafy represented herself. On August 15, 2017,' plairitiffs appeared for an Independent Medical Examination_ (IME). 158770/2014 ELHANAFY, MANAL vs. CITY OF NEW YORK · Motion No. 004 Page 1 of4 1. [* 1] 1 of 4 ,· FILED: NEW YORK COUNTY CLERK 08/12/2022 12:31 PM NYSCEF DOC. NO. 169 INDEX NO. 158770/2014 RECEIVED NYSCEF: 08/12/2022 On January 3, 2022, over five years after plaintiffs' deposition and IME, Triumph served a 90-day notice upon plaintiffs demanding that plaintiff serve and file the note of issue within 90 days after service of such demand. (See Triumph's Exhibit E). Plaintiffs did not file the note of issue within 90 days of service of the demand, and Triumph brings the instant motion for plaintiffs failure to prosecute this matter. Pursuant to CPLR 3216, 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, with. notice to the parties, may dismiss the paity's pleading on tenns. (Emphasis added). The Court cannot dismiss an action pursuant to CPLR 3216 unless: "at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period." Raczkowski v D.A. Collins Const. Co., Inc., 89 NY2d 499, 503 (1997). The Court of Appeals has held that, "CPLR 3216, as it now reads, is extremely forgiving of litigation delay." Id. Whether the Court should grant or deny a CPLR 3216 dismissal motion is left to its sound discretion. Id. During the pendency of the instant motion, plaintiff Ms. Elhanafy retained new counsel. (See NYSCEF doc. 135, Notice of Appearance dated June 13, 2022). Plaintiff Ms. Elhanafy opposes the motion by her newly retained attorney, arguing that she was delayed in the prosecution of this action because her prior attorney withdrew his representation, leaving her to litigate this matter without the assistance of counsel since August 21, 2016. (See NYSCEF doc. 40). She has now retained counsel and is able to proceed. Moreover, as conceded by Triumph, Ms. Elhanafy appeared for a deposition, an IME, and numerous court conferences while representing herself. 158770/2014 ELHANAFY, MANAL vs. CITY OF NEW YORK Motion No. 004 . [* 2] 2 of 4 Page 2 of4 INDEX NO. 158770/2014 FILED: NEW YORK COUNTY CLERK 08/12/2022 12:31 PM NYSCEF DOC. NO. 169 RECEIVED NYSCEF: 08/12/2022 Although Ms. Elhanafy recently retained new counsel, she has not demonstrated any other efforts to prosecute this matter since her IME August 15, 2017. Further, Ms. Elhanafy has not provided any excuse as to her five-year delay in retaining a new attorney, nor has she in any way established that she has not unreasonably neglected to proceed in this action. Therefore, the Court determines that plaintiff Ms. Elhanafy has not offered a justifiable excuse f9r her delay in proceeding and grants Triumph's motion as against her. The Court nptes that Mr. Arif has not retained counsel nor has he filed any opposition papers. Accordingly, Triumph's motion to dismiss for failure to pro~ecute is also granted as to Mr. Arif. The Court finds that the conditions set forth in CPLR 3216 (b) have been satisfied as against plaintiff Mr. Arif, who failed to serve and file a note of issue within the ninety-day period set forth in said subdivision and failed to offer a justifiable excuse for the delay or demonstrate the existence of a meritorious cause of action. The Court determines that plaintiffs have failed to proceed generally in this action, and finds th~t their conduct, notably including the failure to serve and file a note of issue in response to the demand, therefore constitutes a neglect to prosecute this action, and demonstrates a general pattern of delay in proceeding by plaintiffs. Therefore, it is ORDERED that the defendant Triumph's motion to dismiss this action is granted as against both plaintiffs, Manal Elhanafy and Elsaid Arif, and it is further ORDERED that the part of the complaint brought by plaintiffs is dismissed in its .entirety as against all defendants; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General 158770/2014 ELHANAFY, MANAL vs. CITY OF NEW YORK Motion No. 004. [* 3] 3 of 4 Page 3 of4 INDEX NO. 158770/2014 FILED: NEW YORK COUNTY CLERK 08/12/2022 12:31 PM NYSCEF DOC. NO. 169 RECEIVED NYSCEF: 08/12/2022 Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further_ ORDERED that such service upon the Clerk of the Court and the Clerk of the General . Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctrnanh)]. This constitutes the decision and order of the Court. 8/11/2022 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED w SUBMIT ORDER SETTLE ORDER INCLUDES TRANSFER/REASSIGN 158770/2014 ELHANAFY, MANAL vs. CITY OF NEW YORK Motion No. 004 [* 4] GRANTED IN PART 4 of 4 FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page4 of4

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