Opinion
# 2018-049-024 Claim No. 122022 Motion No. M-92919
10-31-2018
SIU YU NG, SIU-YING NG, CHUNG HIEN NINH, KUOK LEONG LO as ADMINISTRATOR for the Estate of BING FONG LEE a/k/a ADA LEE and KUOK LEONG LO INDIVIDUALLY and AMY TRAN as ADMINISTRATRIX for the Estate of NINH-KHANH TRAN v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY,
Caesar & Napoli, P.C. By: Shengyang Wu, Esq. Barbara D. Underwood, New York State Attorney General By: Cheryl Rameau, Assistant Attorney General
Synopsis
Case information
| UID: | 2018-049-024 |
| Claimant(s): | SIU YU NG, SIU-YING NG, CHUNG HIEN NINH, KUOK LEONG LO as ADMINISTRATOR for the Estate of BING FONG LEE a/k/a ADA LEE and KUOK LEONG LO INDIVIDUALLY and AMY TRAN as ADMINISTRATRIX for the Estate of NINH-KHANH TRAN |
| Claimant short name: | NG |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122022 |
| Motion number(s): | M-92919 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Caesar & Napoli, P.C. By: Shengyang Wu, Esq. |
| Defendant's attorney: | Barbara D. Underwood, New York State Attorney General By: Cheryl Rameau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 31, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action is one of thirteen claims pending before me which were filed in the Court of Claims in the wake of the crash of a bus run by World Wide Travel of Greater New York, Ltd. ("World Wide"), at or about marker 3.2 on Interstate 95 on March 12, 2011 (the "March 12 accident"). The claimants are passengers on that bus who were injured in the accident, their spouses, or the estates of those killed (collectively "the bus claimants"). The named defendants are the State of New York and the New York State Thruway Authority (the "Thruway Authority"). A parallel action has been brought in Supreme Court against World Wide and other defendants.
Different counsel represents claimants in each of these actions. The matters have been coordinated for discovery purposes.
The matter is now before me on the Court's motion to dismiss the claim of Sui-Ying Ng, one of six claimants in this particular action, for failure to prosecute pursuant to CPLR 3216. This Decision and Order also addresses an application made by claimant's counsel to withdraw from its representation of Ms. Ng. Counsel for the bus claimants has indicated at periodic status conferences in this matter that little or no action has been taken in these cases in the Court of Claims for several years, as Supreme Court has been the primary forum for seeking redress for injuries suffered in the March 12 accident. Defendant Thruway Authority has brought cross claims in the Supreme Court action to recover for damage to its property allegedly suffered in the same accident.
Subsequent references to Ng or Ms. Ng are to this claimant, and not to Siu Yu Ng, who is also a claimant in this case.
The parties have now informed the Court that they have agreed to a resolution of all thirteen actions, except as to the claimant at issue here. That resolution would entail claimants' stipulation to discontinue all actions in the Court of Claims, in exchange for the discontinuance of the Thruway's cross claim in the Supreme Court action. Stipulations have been signed by all parties with the exception of Ng, and the Thruway has made the dismissal of its cross claims contingent on a global settlement.
At a conference before the Court on June 13, 2018, counsel for claimants in this action indicated that it was unable to locate Ng. Specifically, counsel stated that she had been homeless at the commencement of this action and was staying with another claimant at that time, but no longer resides there and has left no address at which she can be contacted.
By certified mail, return receipt requested, the Court sent Ng, through her counsel, a Demand for Resumption of Prosecution of Action and for Note of Issue dated July 3, 2018. The Demand stated that claimant had "unreasonably neglected to proceed in this matter," noting counsel's representation that it had been unable to contact her despite "multiple efforts to do so." The letter cautioned Ng: "Default in complying with this demand within the 90-day period shall serve as a basis for a Court order directing claimant to show cause as to why this action should not be dismissed for claimant's unreasonable neglect in proceeding, pursuant to CPLR 3216."
No response was received to the 90-day notice. The Court then issued an Order to Show Cause as to why Ng's case should not be dismissed for failure to prosecute. Responses thereto were received both from claimants' counsel and from defendant. In addition, claimants' counsel has submitted a proposed Order to Show Cause seeking to be relieved from its representation of Ms. Ng. In light of the pendency of the present motion, I have refrained from signing that Order to Show Cause.
Claimants' opposition papers state that it is "currently impossible" for counsel to prosecute the case, as Ms. Ng "refused to contact" the attorneys for claimants (Aff in Opp ¶ 3). Shengyang Wu, an attorney from the firm representing claimants, avers that the firm has attempted to reach Ms. Ng through two relatives who are claimants in this action, by regular mail, and by certified mail. The firm has received no proof, however, that such mailings were delivered. He has also contacted the post office, which indicated that Ms. Ng has not changed her last known address. Mr. Wu suggests that these circumstances should be addressed by allowing counsel to withdraw, rather than simply dismissing the case, because an order ending her attorneys' representation would give Ms. Ng a period of time in which to seek new counsel (id.).
In an affirmation in support of the motion to be relieved as counsel, Mr. Wu reiterates the allegations set forth above, and suggests that counsel is entitled to withdraw because the representation has become "unreasonably difficult" in light of the client's failure to communicate with her counsel (Aff in Supp of OTSC ¶ 9). Under the proposed Order to Show Cause, notice of the application would be served personally or by overnight mail.
Defendants have presented the affirmation of an assistant attorney general ("AAG") in response to the Court's motion, arguing that Ms. Ng has "clearly abandoned the action" (Def Aff in Response ¶ 3). The AAG also notes the terms of the pending stipulation, and that Ms. Ng is the only party in any of the thirteen cases that has not yet signed it (id. ¶ 4). On these grounds, defendants urge the Court to dismiss Ms. Ng's claim.
Discussion CPLR 3216(a) provides:
"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."
Further, the Court may in its discretion dismiss a claim under Court of Claims Act § 19(3) for "failure to appear or prosecute."
Rule 3216 requires that before a case may be dismissed thereunder, issue must have been joined for at least one year, and the Court (or party seeking this relief) must have served a demand to the claimant "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" (CPLR 3216[b][2] - [3]). Once such notice has been served, and in the event claimant fails to file the Note of Issue by the deadline, she must show a "justifiable excuse for the delay and a potentially meritorious cause of action" to avoid dismissal (see Siegel v Commack Sch. Dist., 107 AD3d 687 [2d Dept 2013]).
Claimant Ng has unreasonably neglected to prosecute this action. Her case has been pending for more than six years. Although for much of that time this and related actions have essentially been stayed while the claimants proceed in Supreme Court, efforts at settlement have proceeded for over a year. During that time, Ms. Ng has not contacted her counsel, not provided it with a forwarding address, and not in any other way sought to advance this matter.
Counsel for claimant asserts that these issues are better addressed via its motion to withdraw. For several reasons I do not believe that to be the case. First, any effort to serve claimant with that application will run into the same issue the Court has faced with this motion: counsel has no idea where she is. Mailing can be ordered at her last known address, but claimants' attorney has made clear that she no longer resides there. The Court could ultimately allow service through some other method such as publication. Claimant is extremely unlikely to receive such notice, however, and the result will be that when counsel withdraws, the Court will have a pro se claimant for whom it has no address and with whom it will be unable to communicate. That does not promise to aid in the resolution of this matter.
Second, as a result of the above, allowing withdrawal of counsel could result in significant delay. Typically, a decision permitting counsel to withdraw becomes effective after a hearing, and only when counsel files with the Court proof that the decision has been served (see e.g. Hadden v State of New York, UID No. [Ct Cl, Weinstein, J., Nov. 21, 2016]). Each of these protections will serve no purpose given that there is no means to notify claimant. Moreover, initiating a withdrawal proceeding at this stage will serve to hold up the global settlement of these actions, to the detriment of numerous other parties.
Finally, Ng's failure to provide an address at which she cannot be contacted does not constitute a reasonable excuse for failure to prosecute (see Askew v Rose Joy Corp., 25 AD2d 679 [2d Dept 1966] ["the 29-month delay in the prosecution of the action is not excusable on the ground that plaintiff had moved and did not notify his attorneys of his new address"]). To the contrary, claimant's failure to provide such information to counsel is the very reason why this case has not been able to move forward.
As a result of the foregoing Ng has failed to answer the CPLR 3216 demand, and thus to proffer a valid excuse. Thus, I find that her case must be dismissed for failure to prosecute (see Blackmon v Meo, 284 AD2d 711, 711-712 [3d Dept 2001] [court must dismiss when claimant proffers no excuse for failing to prosecute]).
In light of the foregoing, the causes of action brought by Sui-Ying Ng in claim no. 122022 shall be dismissed for failure to prosecute pursuant to CPLR 3216 and Court of Claims Act § 19(3). The matters raised in counsel's proposed Order to Show Cause are now moot, and I decline to sign that Order.
October 31, 2018
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. The Court's Order to Show Cause, dated October 5, 2018; 2. Demand for Resumption of Prosecution, and for Note of Issue, dated July 3, 2018; 3. Defendant's Affirmation in Response, dated October 17, 2018; 4. Claimant's Affirmation in Opposition, dated October 18, 2018; and 5. Claimant's Proposed Order to Show Cause to be Relieved as Counsel, with annexed Exhibits.