Opinion
6173/97.
Decided July 3, 2008.
Malapero Prisco, New York, New York, Attorney for Defendant Third-Party Plaintiff Wonder Works Construction.
Maroney O'Connor LLP Trial Counsel to Gregory J. Allen, Esq., New York, New York, Attorney for Third-Party Defendant CIP Restoration.
Krause Associates, New York, New York, Attorney for Plaintiff.
Michael A. Cardozo, Brooklyn, New York, Corporation Counsel.
Plaintiff moves, inter alia, for an order vacating the dismissal of this action on June 7, 2000 and restoring this action to the calendar.
Plaintiff commenced an action for personal injury allegedly sustained on June 21, 1996 by the filing of a summons and complaint on or about February 21, 1997 under index number 6173/97 (hereinafter "Action No. 1"). On or about February 19, 1999, plaintiff commenced a second action under index number 4549/99 (hereinafter "Action No. 2") against Wonder Works Construction, allegedly for the same occurrence. Plaintiff filed a Note of Issue in Action No. 1 on July 14, 1999. Thereafter, plaintiff moved to consolidate both actions and by order dated January 27, 2000, plaintiff's motion was granted. The actions were consolidated for all purposes under index number 6173/97 and the order directed the clerk to "consolidate the file of index No. 4549/99 into index #6173/97. . . ." The order further provided that the action be overridden to a City Part and the action appeared in the City post-note conference part on May 24, 2000. On that date, the case was overridden to the City Trial Assignment Part for June 7, 2000. On that date, plaintiff's counsel failed to appear and this matter was marked "dismissed."
Plaintiff, nearly eight years later, moves to vacate said dismissal and restore this action to the calendar. Plaintiff also asks that if the dismissal of Action No. 1 "were inexplicable deemed also to constitute a sub silentio phantom dismissal of Action No. 2. . . . by virtue of the technical consolidation of Actions No. 1 and 2, then vacating said lock-step' premature/unintended dismissal of Action No. 2 and restoring Action No. 2 to the appropriate calendar." Alternatively, plaintiff requests that the Court sever Actions No. 1 and 2; restore Action No. 2 to the calendar; schedule a conference to complete the remaining discovery; hold this motion in abeyance pending the outcome of such discovery; and direct a "facts-hearing" pertaining to
"(a) The merits of the action vis-Á-vis the previously-directed, albeit never produced by any of the defendants. . . . contracts, reports, etc., as specified/directed in the prior Orders of this Court;
(b) Adducing proof with respect to the purported existence of any cognizable real-life "prejudice" to the direct defendants/impleaded third-party defendant in Actions No. 1 and/or No. 2; and
(c) Directing the closing of the Courtroom, ordering the sealing of the transcripts, exhibits, etc., in order to preserve the medical and other privileges of non-parties."
A party moving to restore a case that has been struck from the calendar or unanswered on a clerk's calendar call and not restored within one year thereafter, pursuant to CPLR § 3404, must rebut the presumption of abandonment which attaches when the action is automatically dismissed. See Castillo v. City of New York , 6 AD3d 568 , 569 (2d Dept 2004); Krichmar v. Queens Medical Imaging, P.C. , 26 AD3d 417 , 418 (2d Dept 2007); Groudine v. Delco Development Corp., 286 AD2d 416, 417 (2d Dept 2001); Sanchez v. Denkberg, 284 AD2d 446 (2d Dept 2001). To rebut that presumption, the party must demonstrate "the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party in the event that the case is restored to the trial calendar." Civello v. Grossman, 192 AD2d 636 (2d Dept 1993). See Basetti v. Nour, 287 AD2d 126, 130 (2d Dept 2001); Lopez v. Imperial Delivery Service, Inc., 282 AD2d 190, 197 lv dismissed 96 NY2d 937 (2001); Iazzetta v. Vicenzi, 243 AD2d 540 (2d Dept 1997); Knight v. City of New York, 193 AD2d 720 lv dismissed 83 NY2d 800 (1994); M. Parisi Son Const. Co., Inc. v. Long Island Obs/Gyn, P.C. , 39 AD3d 819 (2d Dept 2007). The movant must "satisfy all four components of the test before the dismissal can be properly vacated, and the case restored." Krichmar v. Queens Medical Imaging, P.C., 26 AD3d at 418, supra. See Castillo v. City of New York, 6 AD3d at 568, supra; Buckley v. Astoria Federal Sav., Loan Ass'n, 297 AD2d 696, 697 lv dismissed 100 NY2d 614 (2003); Ruiz v. Roofeh, 285 AD2d 541(2d Dept 2001).
Plaintiff contends that since a Note of Issue was not filed in Action No. 2, he is entitled to restore this action without having to establish all four components of the above-mentioned test. Moreover, plaintiff contends that he has a reasonable excuse for not appearing in court on June 7, 2000, namely that he never received notice to appear in the City Trial Assignment Part, which resulted in the dismissal of this case. Plaintiff further contends that the clerk's office records mistakenly listed plaintiff's previous counsel rather than the current counsel. Consequently, counsel surmises that the notice was "misdirected" to the previous counsel.
Plaintiff's attorney also argues that law office failure may serve as a reasonable excuse for failing to appear at a calendar call and/or a reasonable excuse for the delay in moving to restore this case to the trial calendar. In support of his claim of law office failure, plaintiff's counsel sets forth in detail his circumstances surrounding the events of September 11, 2001, including the loss of his home and disruption of his law office for several months, both due to their proximity to the World Trade Center, as well as several other personal problems. Plaintiff also maintains that he has a meritorious cause of action. He alleges that defendants violated §§ 200, 240, and 241(6) of the Labor Law of the State of New York by their negligent ownership, operation and control of the construction site where plaintiff worked and/or the ladder at the construction site, causing plaintiff to fall from the ladder. Plaintiff maintains he did not intend to abandon this case as evidenced from the ongoing discovery which allegedly only ended when he made this motion in January of 2008. Plaintiff requests a hearing to establish ongoing "litigation activities" in Action No. 2 which allegedly will illustrate plaintiff's intent not to abandon this action. Finally, plaintiff alleges that defendants will not be prejudiced by the restoration of this action because of the ongoing discovery and defendants' alleged lack of knowledge that the case was dismissed.
The Court finds this action was dismissed from the trial calendar pursuant to CPLR § 3404. Plaintiff's attorney's contention that the Court misdirected the notice to appear in the City Trial Assignment Part on June 7, 2000 to prior counsel and that he never received the notice is unconvincing. Plaintiff's current counsel made the motion to consolidate which resulted in the order of January 27, 2000. By that order, Action No. 2 was consolidated into Action No. 1. Since the Note of Issue in Action No. 1 had already been filed more than seven months earlier and the case was overridden to a post-note of issue City part, the Court would not mail an additional notice. The order did not vacate the Note of Issue in Action No. 1. Therefore, plaintiff either knew or should have known that this matter was to appear on a post note of issue calendar. The Court notes that the consolidation order of January 27, 2000 specifically directed plaintiff's counsel to file a Notice of Appearance with the Court "forthwith." Counsel failed to do so until March 26, 2008, shortly after he made the instant motion. Even if the Court had sent an additional notice to plaintiff's counsel, he never would have received such notice because he failed to timely file his Notice of Appearance. Additionally, CPLR § 3404 is reserved "strictly for cases that have reached the trial calendar." Lopez v. Imperial Delivery Service, Inc., 282 AD2d at 199, supra. Therefore, when this action was ultimately dismissed from the trial calendar, it was dismissed pursuant to CPLR § 3404.
To restore this case to the trial calendar, plaintiff must prove a reasonable excuse for the delay in seeking restoration of the action; a meritorious cause of action; lack of intent to abandon the action; and a lack of prejudice to the defendants. See Civello v. Grossman, 192 AD2d at 636, supra; Cobos v. Phieffer 8 AD3d 424 (2d Dept 2004). Plaintiff argues that he did not appear on June 7, 2000 because he did not know the case was on the calendar. He offers law office failure as an excuse for both failing to appear on said date as well as failing to timely restore this action to the calendar. Although the Court has the discretion to accept law office failure as a reasonable excuse, "a claim of law office failure should be supported by a detailed and credible' explanation of the default at issue." Lugauer v Forest City Ratner Co. , 44 AD3d 829, 830 (2d Dept 2007). Law office failure is "rarely an acceptable excuse for failing to expeditiously vacate a CPLR 3404 dismissal. . . ." Fico v Health Ins. Plan of Greater NY, 248 AD2d 432, 434 (2d Dept 1998). This action was dismissed approximately fifteen months before September 11, 2001 and the alleged disruption of plaintiff's counsel's home and law office. Additionally, counsel alleges a series of family and emotional problems over the span of approximately eight years which prevented him from moving to restore the case to the trial calendar.
While plaintiff's counsel's family issues and resulting emotional problems are indeed unfortunate, counsel has failed to establish by competent proof to what extent such issues and problems may have affected his ability to function as an attorney. See Smith v. Fritz, 148 AD2d 438 app dismissed 74 NY2d 715 (1989). Moreover, counsel's failure to seek assistance or substitution of other counsel during the period of his purported extended incapacity is not explained. See Chery v. Anthony, 156 AD2d 414 (2d Dept 1989).
Plaintiff argues that the ongoing discovery which continued after this action was dismissed evidenced plaintiff's intent not to abandon this action. However, from a review of the motion, it appears that no discovery was conducted from August of 2000 to March of 2003. The Second Department has held that a two and one half year period of minimal activity after a case has been dismissed from the trial calendar is "insufficient to rebut the presumption of abandonment that attached after the automatic dismissal (citations omitted)." Castillo v. City of New York , 6 AD3d 568 (2d Dept 2004). By plaintiff's account, there has been no activity for over two and one half years. Additionally, the discovery conducted within the last eight years was minimal. See Fico v Health Ins. Plan of Greater NY, 248 AD2d at 434, supra; Cruz v. Volkswagen of America Inc., 277 AD2d 340 (2d Dept 2000); McCarthy v. Bagner, 271 AD2d 509, 510 (2d Dept 2000). Finally, the Court finds that since approximately twelve years have elapsed between the date of plaintiff's accident and this motion to restore, the defendants would be prejudiced by the restoration of this case. See Collins v. NYC Health and Hospital Corp., 266 AD2d 178 (2d Dept 1999); Cruz v. Volkswagen of America, Inc., supra; Civello v. Grossman, supra. Therefore, plaintiff has failed to meet the four prong burden necessary to rebut the presumption of abandonment.
In view of the foregoing, plaintiff's motion to restore is denied in its entirety.
The foregoing shall constitute the Decision and Order of the Court.