Opinion
2012-12-12
Lynn REED, appellant, v. CORNELL UNIVERSITY, et al., respondents.
Anthony J. Siano, White Plains, N.Y., for appellant. Nelson E. Roth and Valerie Cross Dorn, Ithaca, N.Y., for respondents (one brief filed).
Anthony J. Siano, White Plains, N.Y., for appellant. Nelson E. Roth and Valerie Cross Dorn, Ithaca, N.Y., for respondents (one brief filed).
ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In an action to recover damages for breach of contract and negligence, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Brands, J.), dated August 8, 2011, which granted the defendants' motion, in effect, to strike the note of issue on the ground that the action had already been dismissed in 2007, and (2) so much of an order of the same court entered January 18, 2012, as denied that branch of her motion which was, in effect, to restore this action to the trial calendar.
ORDERED that the order dated August 8, 2011, is reversed, on the law, and the defendants' motion, in effect, to strike the note of issue on the ground that the action had already been dismissed in 2007 is denied; and it is further,
ORDERED that the order entered January 18, 2012, is reversed insofar as appealed from, on the law, and that branch of the plaintiff's motion which was, in effect, to restore this action to the trial calendar is granted; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In October 2005, the plaintiff commenced this action against the defendants to recover damages for breach of contract and negligence. The defendants answered the complaint in December 2005, and the parties conducted discovery. The parties conducted depositions in June 2007, and the defendants thereafter served supplemental discovery demands upon the plaintiff.
While discovery was pending in this action, the plaintiff was involved as a respondent in another proceeding, entitled Matter of Morse Hill Associates, LLC, and commenced in the Supreme Court, Dutchess County, under Index No. 1621/04, to dissolve Morse Hill Associates, LLC, pursuant to Limited Liability Company Law § 702. A judgment in the amount of $75,000 was entered against her in the Morse Hill proceeding, and the Supreme Court in this action entered an order enjoining any payment of money damages in this action to the plaintiff while the Morse Hill judgment remained unsatisfied. The plaintiff appealed the judgment in the Morse Hill proceeding and this Court reversed the judgment in a decision and order dated April 15, 2008 ( see Matter of Morse Hill Assoc., LLC, 50 A.D.3d 906, 855 N.Y.S.2d 652). Subsequently, in an order dated January 12, 2010, the Supreme Court, as a consequence of the reversal of the judgment in the Morse Hill proceeding, lifted the injunction entered in this action.
On July 8, 2010, the plaintiff served the defendants with notice that she intended to call an expert witness at the time of trial. On October 22, 2010, the plaintiff served the defendants with a response to their supplemental and second supplemental discovery demands.
On April 12, 2011, the plaintiff filed a note of issue. The defendants moved, in effect, to strike the note of issue on the ground that discovery, which included a nonparty witness deposition and a supplemental response to their second supplemental discovery demand, remained outstanding. The Supreme Court, in an order dated August 8, 2011, struck the note of issue on the ground that this case had already been dismissed in 2007. The order recited that the plaintiff “would have to move to vacate the dismissal and restore the matter, and would have to provide the court with an explanation of what occurred and a legal basis to re-open this case.” The plaintiff thereafter moved, inter alia, in effect, to restore this action to the trial calendar. In an order entered January 18, 2012, the Supreme Court denied the plaintiff's motion on the ground that she did not provide a reasonable excuse for her delay in conducting discovery, and had engaged in willful and dilatory conduct by failing to provide the defendants with the deposition transcripts of their witnesses. The plaintiff appeals from both orders.
The Supreme Court incorrectly held that the case had been dismissed in 2007, and there is nothing in the record that would support such a conclusion ( see Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 658, 949 N.Y.S.2d 769;Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037, 897 N.Y.S.2d 494;Express Shipping, Ltd. v. Gold, 63 A.D.3d 669, 671, 880 N.Y.S.2d 183;see also Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 505, 655 N.Y.S.2d 848, 678 N.E.2d 460;Tolmasova v. Umarova, 90 A.D.3d 1028, 1029, 934 N.Y.S.2d 866;Docteur v. Interfaith Med. Ctr., 90 A.D.3d 814, 815, 935 N.Y.S.2d 114;Patel v. MBG Dev., Inc., 41 A.D.3d 682, 682–683, 839 N.Y.S.2d 122). Thus, the Supreme Court improperly granted the defendants' motion to strike the note of issue on the ground that the action had been dismissed in 2007, and, as a consequence, improperly imposed a requirement upon the plaintiff to move to vacate that dismissal. In light of the foregoing, the action should have been restored and the note of issue should not have been stricken. Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was, in effect, to restore this action to the trial calendar without considering whether the plaintiff had a reasonable excuse for the delay or whether she engaged in dilatory conduct ( see Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974–975, 822 N.Y.S.2d 292;Corporate Visions, Inc. v. Sterling Promotional Corp., 21 A.D.3d 983, 983, 800 N.Y.S.2d 849;Klevanskaya v. Khanimova, 21 A.D.3d 350, 350, 798 N.Y.S.2d 912;Khaolaead v. Leisure Video, 18 A.D.3d 820, 821, 796 N.Y.S.2d 637; Bar–El v. Key Food Stores Co., Inc., 11 A.D.3d 420, 421, 783 N.Y.S.2d 47;Kallicharan v. Coombes Props., Inc., 7 A.D.3d 578, 579, 775 N.Y.S.2d 911;Farley v. Danaher Corp., 295 A.D.2d 559, 560, 744 N.Y.S.2d 709;Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 200, 725 N.Y.S.2d 57).
The defendants' remaining contentions are without merit.