Opinion
2019–10746 Index No. 11384/11
11-18-2020
Darius GUILLEBEAUX, appellant, v. Adrian PARROTT, et al., respondents.
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for appellant. Brand Glick & Brand, Garden City, NY (Kenneth Finkelstein of counsel), for respondents Adrian Parrott and Torio M. Abdussammee.
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for appellant.
Brand Glick & Brand, Garden City, NY (Kenneth Finkelstein of counsel), for respondents Adrian Parrott and Torio M. Abdussammee.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Laurence L. Love, J.), entered July 17, 2019. The order denied the plaintiff's motion to restore the action to active status.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion to restore the action to active status is granted. On May 10, 2011, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident. Although discovery had not yet been completed, on October 11, 2012, the plaintiff filed a note of issue as directed by court order. Thereafter, the defendants Adrian Parrott and Torio M. Abdussammee moved, inter alia, to vacate the note of issue and remove the action from the trial calendar. In an order dated December 26, 2012, the Supreme Court granted the motion and vacated the note of issue. In April 2019, the plaintiff moved to restore the action to active status. In an order entered July 17, 2019, the court denied the plaintiff's motion based on the doctrine of laches.
CPLR 3404 does not apply to this pre-note of issue action (see WM Specialty Mtge., LLC v. Palazzollo, 145 A.D.3d 714, 715, 41 N.Y.S.3d 899 ; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198, 725 N.Y.S.2d 57 ). Further, there was neither a 90–day demand pursuant to CPLR 3216 (see U.S. Bank N.A. v. Ricketts, 153 A.D.3d 1298, 1299, 61 N.Y.S.3d 571 ), nor an order dismissing the complaint pursuant 22 NYCRR 202.27 (see U.S. Bank N.A. v. Madero, 154 A.D.3d 795, 795, 61 N.Y.S.3d 504 ).
Moreover, "[t]he doctrine of laches does not provide [a] basis to dismiss a complaint where there has been no service of a 90–day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable" ( Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 20, 970 N.Y.S.2d 229 ; see Onewest Bank, FSB v. Kaur, 172 A.D.3d 1392, 1393, 99 N.Y.S.3d 637 ). "The procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay where the plaintiff has not been served with a 90–day demand to serve and file a note of issue pursuant to CPLR 3216(b)" ( Campbell v. New York City Tr. Auth., 109 A.D.3d 455, 455, 970 N.Y.S.2d 284 ; see Chase v. Scavuzzo, 87 N.Y.2d 228, 233, 638 N.Y.S.2d 587, 661 N.E.2d 1368 ; Airmont Homes v. Town of Ramapo, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193, 508 N.E.2d 927 ; Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d at 20, 970 N.Y.S.2d 229 ). In the absence of a 90–day demand pursuant to CPLR 3216, the plaintiff's motion to restore the action to active status should have been granted (see Ortiz v. Wakefern Food Corp., 145 A.D.3d 1024, 1025, 42 N.Y.S.3d 853 ; Melendez v. Plato Gen. Contr., 128 A.D.3d 653, 654, 9 N.Y.S.3d 581 ; Montalvo v. Mumpus Restorations, Inc., 110 A.D.3d 1045, 1046, 974 N.Y.S.2d 87 ).
CHAMBERS, J.P., HINDS–RADIX, LASALLE and WOOTEN, JJ., concur.