Opinion
029268/86.
Decided May 27, 2004.
Plaintiff Video-Cinema Films, Inc. (Video-Cinema) moves, pursuant to CPLR 3404, for an order restoring this action, which was originally commenced in 1986, to active status. For the reasons stated below, the motion is denied.
1. Background
The facts of this case are set forth in detail in the previous decisions which have been rendered in this action. Briefly, on November 16, 1964, Video-Cinema entered into a contract with plaintiff Tele-Pac, Inc. (Tele-Pac) pursuant to which Video-Cinema acquired a license to distribute a group of motion pictures. The agreement stated that Tele-Pac granted Video-Cinema the license "to distribute the [motion pictures] . . . in perpetuity . . . for broadcasting by television or any other similar device now known or hereafter to be made known". This included but was not limited to "pay television, home television, theatrical television, etc. . . ."
See, Tele-Pac, Inc v. Grainger, 146 Misc2d 1088 [NY Sup 1990], rev'd, 168 AD2d 11 [1st Dept 1991].
In April of 1986, Video-Cinema and Tele-Pac commenced the instant action against defendant Raymond Rohauer seeking a declaration that Rohauer had no rights or interest in certain of the motion pictures. Video-Cinema also asserted a cause of action which alleged that Rohauer's false claims of ownership of renewal copyrights in certain of the motion pictures prevented Video-Cinema from selling the videocassette and videodisc rights therein to a third party.
Rohauer is deceased and his estate is represented by Edmund C. Grainger.
Thereafter, on September 25, 1987, Rohauer and Tele-Pac entered into an agreement whereby the latter assigned to Rohauer all of its rights and interests in the motion pictures except for the rights previously granted to Video-Cinema as per the November 16, 1964 contract. See, Tele-Pac, Inc v. Grainger, 168 AD2d 11 [1st Dept 1991].
After this agreement was executed, defendant amended its answer in 1988 to assert a counterclaim alleging that by virtue of the 1987 agreement defendant was the owner of all the video rights in the motion pictures. Video-Cinema then moved for summary judgment dismissing the counterclaim on the grounds that the 1964 agreement gave Video-Cinema the video rights in the motion pictures, and that defendant therefore could not have acquired such rights under the 1987 agreement with Tele-Pac.
In a decision dated March 12, 1990, Justice David Saxe granted summary judgment to Video-Cinema and dismissed defendant's counterclaim. On May 30, 1991, the Appellate Division, First Department reversed and granted summary judgment to defendant to the extent of declaring that the video rights in the films had passed to Rohauer pursuant to the 1987 agreement.
Video-Cinema appealed the First Department's decision. On December 19, 1991, the appeal was dismissed on the grounds that the order appealed from had not finally determined the action. In the meantime, on May 29, 1990, Video-Cinema filed a Note of Issue and on October 18, 1990, the case was marked off the trial calendar. From that point on, plaintiff did not pursue this action further and it languished until the present motion to restore it to active status. In the meantime, the Rohauer estate was wound up, the assets distributed and Mr. Grainger was discharged as Administrator. The video rights were sold by the estate to a third-party in reliance on the First Department's decision.
The Estate's former attorney has submitted opposition papers to this motion on behalf of the Estate as an amicus.
2. Analysis
Plaintiff brings this motion pursuant to CPLR 3404, although he initially argues that the statute is not applicable to the motion. Plaintiff argues that CPLR 3404 does not apply because the First Department remitted the matter to this court. However, it is well established that once a Note of Issue has been filed and the case has been marked off the trial calendar, CPLR 3404 governs an application to restore the case to active status. See, Chase v. Scavuzzo, 87 NY2d 228; Behren v. Warren, Gorham Lamont, Inc, 301 AD2d 381 [1st Dept 2003]; Johnson v. Sam Minskoff Sons, Inc, 287 AD2d 233 [1st Dept 2001]; Lopez v. Imperial Delivery Service, Inc, 282 AD2d 190 [2d Dept 2001].
CPLR 3404 provides in relevant part that
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.
"It is well settled that in order to vacate a dismissal pursuant to CPLR 3404, a plaintiff must demonstrate (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) the absence of prejudice to the opposing party, (4) and a lack of intent to abandon the action." Enax v. New York Telephone Co, 280 AD2d 294 [1st Dept 2001], citing, Muhammed v. Manhattan Payment Center, Inc, 251 AD2d 228 [1st Dept 1998]; Ramputi v. Timko Contracting Corp, 262 AD2d 26 [1st Dept 1999].
A. Lack of Intent to Abandon the Action
Plaintiff argues that his appeal to the Court of Appeals demonstrates that he did not intend to abandon the action. However, that appeal was dismissed on December 19, 1991. Plaintiff sets forth no facts to demonstrate that he did anything to pursue this action after that date.
B. Reasonable Excuse For the Delay
Plaintiff asserts that he failed to pursue this action until now for several reasons. First, he states that he began to have difficulties with his attorneys in 1991, although he does not specify the nature of these difficulties. Second, he did not have sufficient funds to pursue this action. Third, he suffered health problems for many years. Finally, he states that his doctor opined proceeding with this action would be detrimental to his health.
Plaintiff has not demonstrated a reasonable excuse for the delay. Among other things, plaintiff's reasons are undermined by his pursuit for several years of another action which was tangential to this one and resulted in another decision from the First Department. See, Video-Cinema Films, Inc v. Seaboard Sur Co, 214 AD2d 433 [1st Dept 1995].
C. Lack of Prejudice
Plaintiff has also failed to demonstrate that defendant would not be prejudiced. As noted above, the Rohauer estate has been wound up and the video rights were sold pursuant to the First Department's decision. Defendants would clearly be prejudiced if the case were restored to active status more than 12 years after that decision was rendered.
D. Meritorious Claim
Plaintiff has not demonstrated that he has a meritorious claim. First, he states that his claims has merit based on the reasoning set forth in Judge Saxe's original decision. However, that decision was reversed by the Appellate Division. Plaintiff also relies on the decision in Greenfield v. Philles Records, Inc, 98 NY2d 562, 571 in which the Court of Appeals stated that "the unconditional transfer of ownership rights to a work of art includes the right to use the work in any manner . . . unless those rights are specifically limited by the terms of the contract." Plaintiff states, without elaboration, that based on that statement, he believes his claim is meritorious. However, such a conclusory statement is not sufficient to demonstrate the existence of a meritorious claim.
Therefore, given that he has failed to satisfy the criteria set forth in CPLR 3404, the motion must be denied. Accordingly, it is
ORDERED that plaintiff's motion to restore this case to active status is denied.