Opinion
No. 14424/10.
07-20-2016
Mohieldin Mahgour SULIMAN, Plaintiff, v. RITE AID CORPORATION, Defendant.
Mohieldin Mahgoub Suliman, plaintiff pro se. Joseph S. Fitzson, Sobel Pevzner LLC, New York, attorney for defendant.
Mohieldin Mahgoub Suliman, plaintiff pro se.
Joseph S. Fitzson, Sobel Pevzner LLC, New York, attorney for defendant.
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of the defendant Rite Aid Corporation (hereinafter Rite Aid), filed on July 13, 2016, under motion sequence number seven for an order pursuant to CPLR 3216 striking Mohieldin Mahgour Suliman's (hereinafter Suliman) instant complaint for failure to timely file a note of issue.
—Notice of Motion
—Affirmation in support
—Affirmation of good faith
—Exhibits A–G
MOTION PAPERS
Rite Aid's motion papers consists of a notice of motion, an affirmation of good faith, an affirmation by its counsel in support and seven exhibits labeled A through G. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a copy of an order of this court dated November 19, 2010 with notice of its entry. The November 19, 2010, order directed Suliman pursuant to CPLR 3012(d) to accept Rite Aid's verified answer dated July 20, 2010. Exhibit C contains Rite Aid's verified answer and disclosure demands. The annexed disclosure demands includes a demand for verified bill of particulars, a notice to produce, an expert witness demand, a medical demand, and a demand pursuant to Section 111 of the Medicare, Medicaid & SCHIP Extension Act, a demand for damages, and a notice to take deposition. Also included was a notice declining service by electronic transmittal. Exhibit D is described as an eLaw print out from the New York State Supreme Court website. Exhibit E contains three documents, namely, a letter addressed to Suliman dated May 5, 2015, a 90–day demand letter dated May 22, 2015, and an affidavit of service of a 90–day demand. Exhibit F contains four documents, namely, a 90–day demand letter dated February 10, 2016, an affidavit of service of a 90–day demand, a 90–day demand letter dated July 22, 2015 and an affidavit of service of a 90–day demand. Exhibit G contains copies of United States Postal Service certified mail return receipts and a copy of a page from the United States Postal Service Tracking website.
Suliman did not submit opposition papers the instant motion.
BACKGROUND
On June 6, 2010, Suliman, proceeding pro se, commenced the instant action for damages for personal injuries by filing a summons and complaint with Kings County Clerk's Office (KCCO). Issue was joined by an order of the court dated November 19, 2010 which ordered Suliman to accept Rite Aid's verified answer dated July 20, 2010. As of the date of the instant motion a note of issue has not yet been filed.
The instant action is an action for damages for personal injuries allegedly sustained as a result of an accident in the sidewalk in front of Rite Aid's retail pharmacy store located on Bay Ridge Parkway in Brooklyn, New York (hereinafter the subject premise). The complaint alleges that on July 2, 2007, at about 1:00 pm, Suliman caught her foot in a hole on an uneven sidewalk in front of the subject premise which caused her to fall and injure herself. She further alleged that at the time of the accident she was a resident of Arlington, Virginia and was visiting one of her daughters in Brooklyn, New York.
LAW AND APPLICATION
CPLR 3216(b) provides as follows:
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.
CPLR 3216 is an “extremely forgiving” statute (see Ramon v. Zangari, 116 AD3d 753 [2nd Dept 2014] ; citing Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503 [1997], which “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” (Ramon v. Zangari, 116 AD3d 753 [2nd Dept 2014] ; citing Davis v. Goodsell, 6 AD3d 382, 383 [2nd Dept 2004] ).
In addition to the statute being a forgiving one it also includes very specific requirements including the method of service and language of the demand. CPLR 3216(a)(3) requires, amongst other things, that the notice be sent by registered or certified mail. “It has been held that Federal Express-presumably, therefore, any overnight service-may be used instead of the usual U.S. mails. Taking this kind of liberty, however, in the face of a specific statutory instruction for registered or certified mail is not wise, and should in no circumstances be tried when the statue involved is prescribing service of process” (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y. Book 7B, CPLR C3216:17 [internal citations omitted] ). However, in situations where the plaintiff has admitted to receipt of the 90–day notice, the failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of plaintiff, courts should not deny, as jurisdictionally defective, a defendant's motion to dismiss for neglect to prosecute (Blanco v. American Optical Corporation, 66 N.Y.2d 750 [1985] ). The required language of the notice must include a demand to prosecute the action by filing the note of issue. Further that in the event the plaintiff fails to act that a motion to dismiss will be filed.
In support of the instant matter, Rite Aid submitted the affirmation of its counsel, Joseph S. Fritzon (hereinafter Fritzon), from the law firm of Sobel Pevzner, LLC, and several annexed exhibits. Included in the annexed exhibits were three 90–day demand letters and three purported affidavits of service of those 90–day demand letters. The 90–day demand letters were dated May 22, 2015, July 22, 2015 and February 10, 2016. All three of the purported affidavits of service of the 90–day demand letters indicate that they were sent via “post office box under exclusive care and custody of the U.S. Postal Service within the State of New York.” None of them stated that the 90–day demand letters were sent by registered or certified mail.
Fritzon's affirmation was silent as to the reason why three 90–day notices were purportedly sent to Suliman. The affidavit of service of the 90–day demand contained in exhibit E specifically stated that it was served “upon the following attorney(s).” The affidavit, however, did not give a name or description of any individual that was served nor did it state an address where it was mailed. The affidavit of service of the 90–day demand contained in exhibit F pertaining to the 90–day demand dated July 22, 2015, also specifically stated that it was served “upon the following attorney(s).” That affidavit, also failed to give a name or description of any individual that was served or to state an address where it was mailed.
The Court notes that all three 90–day demand letters were issued by attorney Steven Lazar and Christopher J. Mullane of the law firm of Sobel Law Group as counsel to Rite Aid, while the affirmation of counsel in support of the instant motion and the affirmation of good faith are by Fritzon from the law firm of Sobel Pevzner LLC.
As previously stated the affidavit of service pertaining to the 90–day demand letter dated February 10, 2016 did not state that the 90–day demand letter was served via certified or registered mail. Although Fritzon avers in paragraph twelve of his affirmation that the 90–day demand letter dated February 10, 2016 was served via “certified return receipt mail”, he did not allege that he personally served the 90–day demand nor explain the basis for his knowledge of the method of service. Furthermore, the copies of certified return receipt forms are not stamped nor do they bear Suliman's signature. Fritzon's also averred that he did not receive the return label which is routinely sent back to the sender by the United States Postal Service once the mail is delivered and signed for by the addressee.
Also, as previously noted, the three 90–day demand letters were sent by counsel from a law firm with a different name then from the law firm that Fritzon is associated with. In light of the foregoing, there is no reliable basis for the Court to find that Rite Aid properly served Suliman with a demand in accordance with the requirements of CPLR 3216(b). Accordingly, although there is no opposition to the motion it is, nevertheless, denied without prejudice.
CONCLUSION
Rite Aid Corporation's motion for an order striking Mohieldin Mahgour Suliman's complaint pursuant to CPLR 3216(b) is denied without prejudice.
The foregoing constitutes the decision and order of this Court.