Opinion
CV–010752–15/NY
04-30-2018
Danette ERINNA, Plaintiff, v. Dr. Ferdinand A. OFODILE, M.D., Defendant.
Attorneys: Plaintiff: pro se Defendant: Salvatore J. Russo, Esq., General Counsel, Health and Hospitals Corporation
Attorneys: Plaintiff: pro se
Defendant: Salvatore J. Russo, Esq., General Counsel, Health and Hospitals Corporation
Dakota D. Ramseur, J.
Defendant Ferdinand Ofodile, M.D., by counsel, moves to dismiss the complaint of unrepresented Plaintiff Danette Erinna pursuant to CPLR 3216 for failure to prosecute. For the reasons below, the motion is denied and the matter shall be placed on the calendar for conference on July 18, 2018.
Though Defendant's affirmation characterizes Plaintiff's complaint as one for medical malpractice, Plaintiff alleges numerous causes of action, supplemented by Plaintiff's affidavit in opposition to allege "pain and suffering."
A previous version of this order inadvertently listed different dates for the conference. The correct date is July 18, 2018.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On April 8, 2015, the Honorable Cheree A. Buggs ordered that this action be transferred from Queens County Civil Court (CV–002686/15–QU) to New York County Civil Court (Def Exh C ). According to the Court's records, the Clerk of Court transferred the file on May 1, 2015. On May 21, 2015 and twice on June 1, 2015, court records indicate three "phone or in person communications," the participants, contents, and results of which are unknown. The action then lay dormant until March 16, 2017, when Defendant served a CPLR § 3216 90–day notice upon Plaintiff via certified mail (Def Exh D ). After the notice went unanswered, Defendant filed this motion. Defendant argues that dismissal is appropriate because the requirements of CPLR § 3216 have been satisfied: joinder, a 90–day notice, and Plaintiff's failure to file a Note of Issue. In opposition, Plaintiff provides an overview of her claim and asserts that CPLR § 3216 is applicable only in Supreme Court.
DISCUSSION
CPLR § 3216 allows dismissal for failure to prosecute: (1) after the issue is joined; (2) one year after joinder or six months after a preliminary conference order, whichever is later; (3) a written, 90–day demand; and (4) a party's failure to respond to said demand. That these elements were satisfied by Defendant are not in dispute, but CPLR § 3216(e) also provides that upon a party's failure to serve and file a note of issue within the prescribed 90–day period, "the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action" (emphasis added).
With respect to Plaintiff's justifiable excuse for delay, a litigant's decision to proceed without counsel does not generally confer any greater rights than those afforded to other litigants (see eg Mirzoeff v. Nagar , 52 A.D.3d 789, 861 N.Y.S.2d 740 [2d Dept. 2008] ; Horst v. Brown , 72 A.D.3d 434, 435, 900 N.Y.S.2d 13 [1st Dept. 2010] ; Stephen W. v. Christina X. , 80 A.D.3d 1083, 1084, 916 N.Y.S.2d 260 [3d Dept. 2011] ). However, New York City Civil Court Act (CCA) § 1301 explicitly treats unrepresented and represented parties disparately with respect to trial readiness by requiring the Clerk of Court, not the parties, to file a notice of trial when at least one party is unrepresented:
Upon joinder of issue the clerk shall place the case upon a general calendar. Where any party appears in person, the clerk shall fix a date for trial not less than five nor more than fifteen days after joinder of issue, and shall immediately notify all the parties by mail of such date. If any of the parties has appeared by attorney, the clerk shall notify the attorney. Where all parties appear by attorney any party may serve a notice on the others fixing a date for trial not less than five nor more than eight days after the service of such notice, and shall file such notice, with proof of service thereof, with the clerk, who shall thereupon place the case on the calendar for trial. The case shall be set down for trial as provided for by the rules.
CCA § 1301 conflicts with the CPLR which, as relevant here, does not differentiate between unrepresented and represented parties. Specifically, CPLR § 3402 provides that "any party may place a case upon the calendar by filing a note of issue. The clerk shall enter the case upon the calendar as of the date of the filing of the note of issue" (see also 22 NYCRR 202.21 [mandating contents of note of issue] ). To the extent that CCA § 1301 explicitly prescribes different procedures for trial readiness based on the representation status of the parties, it conflicts with CPLR § 3402 and the CCA controls ( CCA § 2102 ["The CPLR and other provisions of law relating to practice and procudure [sic] in the supreme court shall apply in this court as far as the same can be made applicable and are not in conflict with this act "] [emphasis added] ). CCA § 1301 represents the Legislature's recognition of the reality that Civil Court practice involves many unrepresented litigants (see Panicker v. Northfield Sav. Bank , 12 Misc.3d 1153(A), 2006 WL 1340991 at *6 [Civ Ct Richmond County 2006] [finding attorney's summary judgment motion timely where CPLR § 3212 120–day deadline is inapplicable to civil court under the reasoning that it would be unfair to treat unrepresented and represented litigants differently] ). Accordingly, because CCA § 1301 requires the Clerk of Court to calendar the matter for trial rather than requiring unrepresented litigants to file a notice of trial, it would have been unjustified, in this instance, to require Plaintiff to file a notice of trial in response to Defendant's 90–day demand. Thus, Plaintiff has satisfied CPLR § 3216(e) by demonstrating a justifiable excuse for a delayed response. Because joinder in this action occurred in Queens County, there was no occasion for the New York County clerk, as required by CCA § 1301, to "fix a date for trial" except upon transfer of the file which, through no fault of Plaintiff, did not occur. Though Defendant served a 90–day notice upon Plaintiff, Plaintiff could not have reasonably been expected to file a notice of trial when the CCA required the Clerk to have done so. With respect to Plaintiff's meritorious cause of action, she has continued to allege pain and suffering stemming from the allegations in her complaint.
The Court also notes that Defendant demanded the filing of a note of issue, not the more proper notice of trial.
Additionally, 22 NYCRR § 208.1 provides that, "for good cause shown, and in the interests of justice, the court in an action or proceeding may waive [court rules] unless prohibited from doing so by statute or by a rule of the Chief Judge." Given the unusual procedural posture in this action, denying dismissal and placing this matter on the calendar is the more appropriate course of action.
Accordingly, it is hereby
ORDERED that Defendant's motion to dismiss is DENIED in its entirety; and it is further
ORDERED that the Clerk of Court shall send a copy of this decision to all parties forthwith; and it is further
ORDERED that, within 30 days of receipt of this order, each party shall send to each other all documents intended for use at trial, or the documents may be precluded at trial ; and it is further
ORDERED that the Clerk shall calendar the matter for a conference on July 18, 2018, at 9:30 a.m. at 111 Centre St., Room 325, New York, NY, and that the failure of either party to appear may result in dismissal and/or default.
This constitutes the decision and order of the Court.