Opinion
Index No. TS-350017/2019
03-24-2023
Linda LEON, Plaintiff, v. MIRACLE BEAUTY SALON, INC., Romantic Beauty Salon, et al., Defendants.
The following papers numbered 1 to 4 were read on plaintiff's motion to, essentially, restore this action to the trial calendar, and defendants’ cross-motion to dismiss pursuant to 22 NYCRR § 208.14(c).
Defendants submitted a cross-motion that will be considered despite that it was not properly filed and sequenced.
All defendants save Miracle Beauty Salon, Inc., Romantic Beauty Salon, Party Girl Beauty Salon and Marie Elibert who failed to appear and be heard on these applications.
Papers/Numbered
Notice of Motion, Affirmations, Exhibits 1
Notice of Cross-Motion, Affirmation, Exhibits 2
Affirmation in Opposition to Cross and Reply 3
Reply Affirmation 4
Upon the foregoing papers, as well as a conference/oral argument, it is ordered that this motion and cross-motion are determined as follows:
This action was marked off the trial calendar on September 17, 2019, having been on four times prior without genuinely being ready for trial. Discovery had not been completed, and, per the instant applications, continues to remain outstanding. Now, plaintiff is essentially seeking to have the matter restored and the outstanding discovery addressed thereafter. This relief is inappropriate as the latter excludes the former.
Movant has admitted that discovery remains outstanding. Consequently, the matter is not ready for trial and, (among other reasons relative to the rule cited that are not addressed here), restoring it to the Part 20 trial calendar pursuant 22 NYCRR § 208.14(c), which requires an affidavit showing, inter alia , trial readiness, is improper.
Moreover, Part 20, contrary to movant's request, does not exist for the purpose of conducting status conferences, save those cases that are, in fact, trial ready. A matter placed on that calendar comes by way of transfer from Supreme Court pursuant to CPLR § 325(d), or because one of the parties, in a case where both are represented by counsel, files a Notice of Trial (see 22 NYCRR § 208.17 ). Like its Supreme Court counterpart, the Note of Issue, (see 22 NYCRR § 202.21 ), the Notice of Trial must be accompanied by a Certificate of Readiness that confirms the matter is ready for trial and discovery is complete or has been waived, (id. at [a] and [f]; see also Queens Chiropractic Mgt., P.C. v. Country Wide Ins. Co. , 23 Misc 3d 142(A) [App Term, 2nd Dept. 2009]citing Savino v. Lewittes , 160 AD2d 176, 177-78 [1st Dept. 1990] [granting vacatur of a Notice of Trail when based on erroneous statements in a readiness certificate that discovery was complete ]). Accordingly, an action's appearance on the Part 20 calendar presumes the completion of discovery and therefore, movant's request to conduct a status conference for the purposes of addressing any and all outstanding discovery is incongruous.
Civil Court does not have parts dedicated to only addressing the discovery process, like Supreme Court that has Preliminary and Compliance Conference parts.
Similarly, and despite that the parties did not file a Notice of Trial, granting an extension of their time to do so pursuant to CPLR § 2004 is procedurally incorrect. This matter was transferred here, "post-Note", from Supreme Court pursuant to CPLR § 325(d). Therefore, a Notice of Trial did not have to be filed for the matter to be calendared, (see 22 NYCRR § 208.15 ; see also Haddad v. 2-8 West 47th Street Realty Co. , 35 Misc 3d 138(A) [App Term, 2nd Dept. 2011] ). After numerous calendar appearances, this matter was, again, "marked off", however, this is not the equivalent of striking, vacating, or withdrawing a trial notice, (see Reitman v. St. Francis Hosp. , 2 AD3d 429 [2nd Dept. 2003] ; see also Basetti v. Nour , 287 AD2d 126 [2nd Dept. 2001] ; Lyons v. Saperstein , 202 AD2d 401 [2nd Dept. 1994] ; Rosario v. Ortiz Funeral Home Corp. , 16 Misc 3d 739 [Civ Ct, Bronx Co. 2007] ). Accordingly, allowing a Notice of Trial to be filed is redundant since the Note of Issue filed in the Supreme Court action stands, (see CPLR 326[b] ).
Defendants’ request to dismiss this action pursuant to 22 NYCRR § 208.14(c) is also misplaced. This rule contains no provision for dismissing an action as abandoned, (see Hillside Place, LLC v. Shahid , 55 Misc 3d 101, 102-03 [App Term, 2nd Dept. 2017] ; see also Chavez v. 407 Seventh Ave. Corp. , 39 AD3d 454 [2nd Dept. 2007] ; Q-B Jewish Med. Rehab., P.C. v. Metlife Ins. Co. , 42 Misc 3d 146(A) [App Term, 2nd Dept. 2014] ; Harris v. Stern & Montana, LLP , 16 Misc 3d 136(A) [App Term, 2nd and 11th Jud Dists 2007] ; but see Johnson v. Rockaway One Co., LLC , 26 Misc 3d 901 [Civ Ct, Queens Co. 2009] ).
In light of the above, the court is left with no choice but to deny both the motion and the cross-motion.
This means the action remains "off calendar" yet not presently dismissible, and the parties remain in discovery limbo unless a CPLR 3124 or § 3126 motion is made. As this motion and cross-motion came before the court, and the court is desirous of moving this action forward, it is hereby ORDERED that all outstanding discovery, including party depositions, to the extent not completed, and responses to demands, be completed within ninety (90) days of the date hereof. Failure to comply shall be subject to the penalties of CPLR § 3126 upon further motion.
As a courtesy, a copy of this Decision and Order has been sent to both sides.
The foregoing constitutes the decision and order of this Court.