Opinion
13173/09
09-15-2016
Justin M. Santiago, by his parent and natural guardian ELIZABETH SANTIAGO, Plaintiff, v. Park Ambulance Service Inc. DBA AMERICAN MEDICAL RESPONSE, Defendant
Pro Se Plaintiff Elizabeth Santiago (individually and on behalf of infant plaintiff Justin Santiago) Attorney for Defendant Suzanne Billig, Esq. Billig Law, P.C. 61 Broadway, Suite 510 New York, NY 10006 (212) 689-8390
Pro Se Plaintiff Elizabeth Santiago (individually and on behalf of infant plaintiff Justin Santiago) Attorney for Defendant Suzanne Billig, Esq. Billig Law, P.C. 61 Broadway, Suite 510 New York, NY 10006 (212) 689-8390 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Park Ambulance Service Inc. DBA American Medical Response (hereinafter Park or the movant), filed on June 28, 2016, for an order: (1) restoring the action to the active calendar pursuant to CPLR 3404; and (2) dismissing the case with prejudice due to abandonment of the action and due to Santiago's failure to comply with Court ordered discovery.
Justin M. Santiago (hereinafter Justin or the infant), by his parent and natural guardian Elizabeth Santiago (hereinafter Santiago) did not submit opposition to the motion. -Notice of Motion -Affirmation in support -Exhibits 1-7
BACKGROUND
On May 29, 2009 Santiago commenced the instant action for damages for personal injuries sustained by Justin, her child, by filing a summon and verified complaint with the Kings County Clerk's office (KCCO). On July 15, 2009, Park served and filed a verified answer. A note of issue has not yet been filed.
Santiago has alleged the following facts, among others, in the verified complaint. Justin is disabled, wheelchair bound and unable to communicate or sit without assistance. Justin was a student attending Public School 380 in a New York City Department of Education Program for disabled children. On June 9, 2006, he was transported to and from school in a van owned, operated, maintained and controlled by Park. Santiago claims that on that date, Justin sustained a fracture of his right elbow due to Park's negligence in transporting and caring for him while he was in their custody.
On March 12, 2010, the Court issued an order granting plaintiff's counsel leave to withdraw as counsel and stayed the proceeding for thirty days to obtain new counsel. The order also directed the method and manner that prior counsel was to serve Santiago with the March 12, 2010 order.
On April 30, 2010, the Court issued an order granting Park's motion for an order compelling Santiago to provide certain demanded discovery (hereinafter the April 3, 2010 order).
LAW AND APPLICATION
Restoring the Case to Active Status
Park's first request is for an order restoring the instant action to the active calendar pursuant to CPLR 3404. Park submitted, among other things, an affirmation of its counsel and a copy of an E-law page to support this branch of its request. Park's counsel averred that on June 17, 2013, the Court marked the case dismissed, pre-note of issue, due to Santiago's failure to appear at four conferences. Park's counsel also referred to an annexed copy of an E-law web page entry which purportedly reflected that fact. Park's counsel did not state that the dismissal was pursuant to a written court order nor did he attach a copy of any such order. This branch of Park's request calls for an explanation of the applicability of CPLR 3404 to a pre-note of issue case.
CPLR 3404 provides as follows:
A case in the supreme court or a county court marked "off" or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.
The conventional contemplation of CPLR 3404 is the trial calendar (see Siegel, Practice Commentaries, McKinney's Cons. Laws of NY Book 7B, CPLR C3404:1. Dismissal of Abandoned Cases, Introductory). It's of course the filing of the note of issue that puts the case on the trial calendar (see Siegel, Practice Commentaries, McKinney's Cons. Laws of NY Book 7B, CPLR C3404:1. Dismissal of Abandoned Cases, Introductory).
If the plaintiff's case is struck from it, the plaintiff must move to restore the case within a year after it has been stricken, or the case will be deemed abandoned (Id.). CPLR 3404 assumes the case is properly on the calendar (Id.). If it isn't, as when the note of issue itself is stricken because the case is not ready for calendar placement, the case returns to pre-note of issue status (see Travis v Cuff, 28 AD3d 749 [2nd Dept 2006]). If defendant then seeks the case's dismissal for want of prosecution, CPLR 3404 is irrelevant and CPLR 3216 becomes the applicable tool (Id.).
In this case, since no note of issue was filed the action was not on the trial calendar and CPLR 3404 was not the proper procedural vehicle for dismissing or marking the case off calendar as abandoned (Kapnisakis v Woo, 114 AD3d 72 [2nd Dept 2014] citing Khaolaead v Leisure Video, 18 AD3d 820 [2nd Dept 2005]; Lopez v Imperial Delivery Serv., 282 AD2d 190 [2nd Dept 2001]).
Therefore, the instant action, whether marked off or dismissed pursuant to CPLR 3404, must be restored to the active trial calender at the request of either party to the action. There is no basis to deny Park's application to restore the case to active status (Kapnisakis v Woo, 114 AD3d 72 [2nd Dept 2014] citing Hemberger v Jamaica Hosp., 306 AD2d 244 [2nd Dept 2003]). Dismissal due to Plaintiff's Abandonment
Park second request is for an order dismissing the verified complaint on the basis that Santiago has abandoned the action and on the basis that she has failed to comply with Park's disclosure demands. CPLR 2214 (a) provides that a movant must set forth the facts, the proffered evidence and the law relied upon for the relief requested. Park stated the relief it wanted and the facts it was relying upon but did not cite any law in support of this branch of its motion.
Although the failure to comply with CPLR 2214 provides a sufficient basis to deny this branch of Park's motion, there are additional problems that merit discussion. As previously stated, when a party seeks dismissal of a case pre-note of issue for want of prosecution, CPLR 3404 is irrelevant and CPLR 3216 becomes the applicable tool (Travis v Cuff, 28 AD3d 749 [2nd Dept 2006]).
CPLR 3216 provides as follows:
Want of prosecution. (a) 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. (b) 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; (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 for unreasonably neglecting to proceed.
There is no dispute that Park did not send Santiago a demand to file a note of issue as required by CPLR 3216 [b] [3]. Service of such a notice is one of the statutory preconditions to a dismissal for want of prosecution (Neary v Tower Ins., 94 AD3d 723 [2nd Dept 2012]; CPLR 3216 [b] [3]). Consequently, the court is prohibited from dismissing the action based on Santiago's neglect to prosecute (see Griffith v Wray, 109 A.3d 512 [2nd Dept 2013]). Dismissal due to Plaintiff's Disclosure violations
CPLR 3126 provides the procedural vehicle for seeking penalties based on a party's refusal to comply with a disclosure order. Uniform Court Rule § 202.7 provides that no motion relating to disclosure shall be filed with the court unless it is accompanied by "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." Such affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions." (see 22 NYCRR § 202.7 [c]).
In support of its claim that Santiago did not comply with court ordered discovery, Park submitted, among other things, an affirmation of good faith in accordance with 22 NYCRR 202.7. The affirmation alleges that on May 30, 2010, Park mailed a letter and a copy of a court order to Santiago asking for discovery to be disclosed. It further alleges that on January 22, 2013, Park sent another letter to Santiago. It further alleges that Santiago failed to appear at four preliminary conferences. It also alleged that Santiago never contacted the firm to request an extension of time to obtain new counsel or to serve it with the discovery it had demanded.
The affirmation of good faith submitted by the plaintiff's counsel does not satisfy 22 NYCRR 202.7 (c), as it did not refer to any communications between the parties that would evince a diligent effort by Park to resolve the present discovery dispute or indicating good cause why no such communications occurred (Murphy v County of Suffolk, 115 AD3d 820 [2nd Dept 2014] citing 22 NYCRR 202.7 (c)]; Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d 908 [2nd Dept 2013]). In particular, the affirmation of good faith fails to indicate the time, place and nature of any consultation with Santiago, the issues discussed, and any resolutions. Merely sending letters to Santiago is not sufficient to satisfy the requirement of 22 NYCRR § 202.7 [c]. On this ground alone, Park's motion must be denied (see Mironer v City of New York, 79 AD3d 1106, 1107—08 [2nd Dept 2010]; Yargeau v Lasertron, 74 AD3d 1805, 1806 [4th Dept 2010]).
CONCLUSION
Park Ambulance Service Inc. DBA American Medical Response motion for an order restoring the action to the active calendar pursuant to CPLR 3404 is granted.
Park Ambulance Service Inc. DBA American Medical Response motion for an order dismissing the case with prejudice due to abandonment is denied.
Park Ambulance Service Inc. DBA American Medical Response motion for an order dismissing the case with prejudice due to Santiago's failure to comply with Court ordered discovery is denied without prejudice.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.