Opinion
Index No. 151388/2021 MOTION SEQ. No. 003
09-13-2024
ANA MERCEDES FELIPE, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF CHAUNCEY MARINO GONZALES, DECEASED, Plaintiff, v. NEW YORK CITY, NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, VOLUNTEERS OF AMERICA- GREATER NEW YORK, FJC SECURITY SERVICES, INC., JOHN DOES 1-10, JANE DOES 1-10, XYZ CORPORATION Defendant.
Unpublished Opinion
MOTION DATE 01/12/2024
PRESENT: HON. JEANINE R. JOHNSON Justice
DECISION + ORDER ON MOTION
Jeanine R. Johnson Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 were read on this motion to/for DISMISS.
Upon the foregoing documents and oral argument held on June 5, 2024, Defendant -Volunteers of America-Greater New York Inc.'s (hereinafter "VOA") and Defendants - City of New York and NYC Department of Homeless Services (collectively hereinafter "Defs. NYC") combined motion to dismiss pursuant to CPLR § 3216 is denied.
LEGAL STANDARD
CPLR § 3216(a) states, "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 party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits."
CPLR § 3216(b) states, "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 or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later;
(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 or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."
CPLR § 3216(e) states, "in the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action."
"Where a party ignores a 90-day demand, the court may grant a motion to dismiss 'on terms, unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action.'" Pub. Serv. Mut. Ins. Co. v Zucker, 225 A.D.2d 308, 309 (1st Dept 1996). Courts have found law office failure to be an acceptable excuse. See Miskiewicz v Hartley Rest. Corp., 58 N.Y.2d 963 (1983); Thompson v Shafer, 57 A.D.2d 824 (1st Dept 1977) ("Plaintiff should not be required to suffer the consequences of his attorney's conduct."). However, "in defending a proper motion to dismiss for neglect it is essential that Plaintiff supply an affidavit of merit." Sortino v Fisher, 20 A.D.2d 25, 31-32 (1st Dept 1963). The affidavit of merit must be by "someone with personal knowledge of the facts... [and] merely incorporating the complaint by reference, is insufficient." Pub. Serv. Mut. Ins. Co. at 309. Even "where Plaintiff is the representative of a deceased person... there must still be merit shown by evidentiary facts." Sortino at 32. But "an ample explanation for the delay requires less of a showing of merit... [and] prejudice to defendant is material but not essential." Id.
DISCUSSION
VOA asserts Plaintiffs complaint should be dismissed because she "failed to respond to... [the] written demand [served on October 11, 2023] in any way... [and] failed to show any justifiable excuse for the delay... [or show] a good and meritorious cause of action." (NYSCEF Doc. No. 47). VOA further asserts, "the administratrix of the decedent's estate... has no personal knowledge of the subject incident [and] as such, her affidavit does not and cannot affirm the merit of the case." (NYSCEF Doc. No. 71).
Defs. NYC assert, Plaintiff failed to respond to the 90-day notice served... on October 26, 2023... [and] has failed to demonstrate a justifiable excuse and meritorious cause of action." (NYSCEF Doc. No. 59). Similar to VOA, Defs. NYC also argue that the administratrix's, "affidavit in support is not made with personal knowledge and cannot demonstrate merit to her case." (NYSCEF Doc. No. 68).
Plaintiff contends the case has not been abandoned as evidenced by its response to Defs. NYC's Demand for Authorization filed January 8, 2024, and further contends it's "still waiting for VOA to conduct depositions [and] the parties have not completed discovery... [thus it] cannot provide a Certificate of Readiness." (NYSCEF Doc. No. 62). Plaintiff outlines a series of personal and staffing issues that resulted in its delayed response as a justifiable excuse for the delay and submits the affidavit of merit by the decedent's mother to affirm the merits of the case. Lastly, Plaintiff highlights the "established public policy that action[s] should be considered on their merit... [and an adverse ruling] would work a grave injustice and severe hardship." Id.
This Court finds that counsel for Plaintiffs delay is a justifiable excuse and Plaintiffs affidavit of merit sufficiently affirms a good and meritorious cause of action. The instant matter is distinguishable from Pub. Serv. Mut. Ins. Co. v Zucker, where the court held "counsel's affirmation, merely incorporating the complaint by reference, is insufficient." 225 A.D.2d 308, 309 (1st Dept 1996). Here, the affidavit of merit was supplied by the decedent's mother. Similarly to Thompson v Shafer, a First Department case which treats dismissal under CPLR § 3126 conservatively, this Court finds that 'Plaintiff had no intention to abandon this action, there is no undue prejudice to Defendants because of the delay of Plaintiffs counsel in prosecuting the action, and Plaintiff should not be required to suffer the consequences of her attorney's conduct.' 57 A.D.2d 824 (1 st Dept 1977).
Accordingly, it is hereby,
ORDERED that Defendant - VOA's motion to dismiss is denied; it is further
ORDERED that Defendants - City of New York and NYC Department of Homeless Service's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.