Opinion
2698/2005
10-20-2011
Tatiana Degtiarev, Plaintiff, v. Linda Delecia-Kenny, Defendant.
Plaintiff Attorney Alan R. Inwood Defendants Attorney Robert P. Tusa
Plaintiff Attorney Alan R. Inwood
Defendants Attorney Robert P. Tusa
Wayne P. Saitta, J.
Plaintiff, TATIANA DEGTIAREV, (hereinafter "Plaintiff"), moves this Court for an Order restoring this case, seeking sanctions against the Defendant for opposing the motion to restore, and granting further relief as this Court deems just and proper.
Upon reading the Notice of Motion, of Alan R. Inwood, Esq., Attorney for Plaintiff, TATIANA DEGTIAREV, dated May 31st, 2011, together with the Affirmation in Support of Alan R. Inwood, Esq., dated May 31st, 2011 and all exhibits annexed thereto; the Affirmation in Opposition of Eric Basterrechea, Esq., Attorney for Defendant, LINDA DELECIA-KENNY, dated July 25th, 2011; the Reply Affirmation of Alan R. Inwood, Esq., dated July 25th, 2011, and all exhibits annexed thereto; and after argument of counsel and due deliberation thereon, Plaintiff's motion to restore and for sanctions is granted for the reasons set forth below.
FACTS
The underlying action is a motor vehicle accident in which the Plaintiff sustained injuries. The accident occurred on August 16, 2004. On September 28, 2007 a compliance conference was held and an Order was issued which directed the Plaintiff to file her note of issue on or before January 29, 2008.
Preprinted on the Order is the statement that it does not constitute a CPLR §3126 notice.
Plaintiff failed to file a timely note of issue and the Court administratively marked the case disposed on February 8, 2008.
Plaintiff moved to restore the case to active status on May 31, 2011. Plaintiff states that all discovery is complete. Defendant opposed the motion. Plaintiff further seeks sanctions against Defendant on the grounds that their opposition is frivolous within the meaning of Rule 130.
DISCUSSION
It is the clear rule in the Second Department that where a case is administratively marked off pre Note of Issue, without the Court having issued an Order marking this case off, the Plaintiff does not have to make a showing of merit pursuant to CPLR 3404 to be restored to the calendar. Khaolaead v Leisure Video, 18 AD3d 820, 796 N.Y.S.2d 637 (2nd Dept 2005); Hemberger v Jamaica Hosp., 306 AD2d 244, 761 N.Y.S.2d 252 (2nd Dept 2003); Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 744 N.Y.S.2d 215 (2nd Dept 2002); Lopez v Imperial Delivery Serv., 282 AD2d 190, 725 N.Y.S.2d 57 (2nd Dept 2001).
In Lopez v Imperial Delivery Serv., 282 AD2d 190, 725 N.Y.S.2d 57 (2nd Dept 2001), the Second Department held that CPLR 3404 should not apply to cases which have been "marked off" where no Note of Issue has been filed. The Court undertook an analysis of CPLR 3404, CPLR 3126 and the Uniform Rule for Trial Courts (22 NYCRR) §202.27, which addresses defaults, and restoration of cases to the calendar. The Lopez Court reviewed the legislative history of the various rules, and how their application evolved with the institution of the Individual Assignment System.
The Court concluded that "marking a case off or striking a case before the filing of a note of issue is not consistent with the purpose of the IAS". Id., at 196 .
It reasoned that the application of CPLR 3404 to pre-note cases merely leads to unnecessary motion practice and was a waste of resources, judicial and otherwise. The Court made it clear that any of its prior holdings which permitted the application of CPLR 3404 should not be followed. Id., at 198.
In opposing the motion, Defendant cites several cases, each of which addressed the standard required to restore a case that had been dismissed from the trial calendar, pursuant to CPLR 3404. Stewart v Tapps Supermarket, 289 AD2d 561, 735 N.Y.S.2d 800 (2nd Dept 2001); Welch v Good Samaritan Hosp., 261 AD2d 612, 690 N.Y.S.2d 722 (2nd Dept 1999); Aguilar v Djonvic, 282 AD2d 366, 723 N.Y.S.2d 474 (1st Dept 2001), Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 810 N.Y.S.2d 488 (2nd Dept 2006). Defendant misrepresents these cases as being controlling in this case which involved a pre-note disposition. Each of the cases cited specifically deals with cases which were dismissed from the trial calendar, which is not the case before us.
Plaintiff also seeks an award against Defendant in the amount of $3,500 which represents ten hours of time spent pursuing the restoration which required several court appearances.
Defendant's opposition was not based on any tenable legal argument and was contrary to the Second Department's specific directive that CPLR 3404 should not be applied to pre-note of issue cases.
At the hearing of the motion, Defendant's attorney argued that sanctions are not warranted because Defendant is not obligated to consent to restoring the case. However, while Defendant is not under any obligation to stipulate to restore the case to the calendar, she is not free to submit frivolous opposition. By submitting opposition to Plaintiff's motion to restore, which had no merit in law and could not be supported by any reasonable argument for a modification of existing law, Defendant has wasted both her adversary's and the Court's time and resources.
The only conceivable purpose for opposing the motion to restore is to delay the proceeding and require Plaintiff to expend unnecessary resources.
Given the lack of merit of Defendant's opposition, it is appropriate to award Plaintiff costs for the costs incurred by the opposition. The $3,500 in attorney's fees sought for ten hours work on this motion is a reasonable award under these circumstances.
WHEREFORE, Plaintiff's motion is granted, it is ORDERED that Plaintiff's motion is granted, and it is hereby ORDERED that the case is restored to the calendar, and it is further ORDERED that Defendant's counsel, Law Offices of ROBERT P. TUSA, 1 Metrotech Center, 19th floor, Brooklyn, NY 11201, pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130—1.2, shall pay costs of $3,500.00 to Plaintiff TATIANA DEGITIAREV, for reasonable attorneys' fees, within thirty (30) days after service of the notice of entry of this decision and order.
This constitutes the decision and order of the court.
ENTER
JSC