Opinion
152678/12
06-21-2016
Arturo Reyes, Plaintiff, v. New York City Transit Authority and MANHATTAN AND BRONX SURFACE TRANSIT OPERATION AUTHORITY, Defendants.
Appearances: For Transit Defendants—Movants: Lawrence Heisler, Esq. By: Lindsey M. Gosin, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-5338 For Plaintiff—Non-Movant: Scott A. Wolinetz, Esq. Scott a. Wolinetz, P.C. 233 Broadway, Suite 220 New York, New York 10279 (212) 962-1133
Appearances: For Transit Defendants—Movants: Lawrence Heisler, Esq. By: Lindsey M. Gosin, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-5338 For Plaintiff—Non-Movant: Scott A. Wolinetz, Esq. Scott a. Wolinetz, P.C. 233 Broadway, Suite 220 New York, New York 10279 (212) 962-1133 Michael D. Stallman, J.
Plaintiff Arturo Reyes alleges that on July 16, 2011, he was "injured while riding his bicycle by Defendant, NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATION [sic] AUTHORITY" on Broadway between West 204th Street and Academy Street. (Complaint [NYSCEF Doc. 1] ¶¶ 8-9.) Defendants New York City Transit Authority (NYCTA) and Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) (collectively, Transit Defendants) move to dismiss the complaint, pursuant to CPLR 3216, for failure to prosecute. Plaintiff opposes the motion.
BACKGROUND
Issue was joined on or about September 28, 2012, when Transit Defendants served their answer on plaintiff. (Gosin Affirm., Ex. B [Answer].) Transit Defendants served a written demand upon plaintiff to resume the litigation and file a note of issue on May 11, 2015, more than two-and-a-half years after issue was joined, and a year-and-a-half after the preliminary conference order was entered. (Gosin Affirm., Ex. B [Answer], Ex. C [90 Day Demand]; Preliminary Conference Order, dated August 8, 2013 [NYSCEF Document No. 6].) Plaintiff's counsel does not deny that plaintiff has not complied with the May 11, 2015 demand, but explains that plaintiff has been unable to prosecute the case because "Plaintiff is out of the country and this office does not have a way of contacting him while he is gone." (Wolinetz Opp. Affirm. at 1.)
In addition, Transit Defendants assert that plaintiff has failed to appear for his deposition approximately seven times, and plaintiff's counsel does not deny this assertion. (Gosin Affirm. ¶ 8; see also Ex. D [May 12, 2015 Compliance Conference Order] ["According to defendant, plaintiff has failed to appear for an EBT approximately seven times. Plaintiff's counsel is not sure whether this is accurate, but represents that his client has been out of the country for personal reasons and therefore has been unable to appear."].) On May 12, 2015, this Court ordered that plaintiff's deposition would be held on or before November 12, 2015, and further ordered that: "Plaintiff's counsel must provide by the next conference [on December 10, 2015] an affidavit from the client listing plaintiff's last known address, dates client [is] out of the country, date client returning to country and explanation for client's absence from EBTs." (Gosin Affirm., Ex. D [May 12, 2015 Compliance Conference Order].) Transit Defendants allege that, since the Court's May 12, 2015 Order, plaintiff has not appeared for his deposition, and plaintiff's counsel has not provided the information ordered to be provided by this Court. (Gosin Affirm. ¶ 8.)
Transit Defendants further allege that plaintiff's counsel "adjourned the conference that was scheduled for December 10, 2015 after making your affirmant aware that he still could not locate his client." (Id.) Upon the Court's review of its internal case management system, it would appear that, the December 10, 2015 compliance conference was adjourned to April 14, 2016, and then adjourned again to July 14, 2016.
ARGUMENTS
Transit Defendants argue that the complaint should be dismissed because all the conditions for dismissal under CPLR 3216 have been met: Transit Defendants served a demand to prosecute on May 11, 2015; more than a year after issue was joined and more than six months after the preliminary conference; and Plaintiff has failed to respond to that demand. (Gosin Affirm. ¶¶ 11-12.) In addition, Transit Defendants assert that plaintiff has failed to comply with this Court's Order of May 12, 2015. (Id. ¶ 12.) For these reasons, Transit Defendants argue that "it is clear that Plaintiff has abandoned his action and failed to prosecute." (Id. ¶ 13.)
Plaintiff's counsel argues that the instant motion should be denied because "Plaintiff has not willfully or contumaciously upheld [sic] discovery." (Wolinetz Opp. Affirm. at 1.) Rather, plaintiff's counsel asserts that "Plaintiff is out of the country and this office does not have a way of contacting him while he is gone." (Id.) Thus, plaintiff's counsel argues that "it would be draconian to dismiss Plaintiff's case simply due to the fact that he is out of the country." (Id. at 2.)
In addition, plaintiff's counsel argues that "the Court Order of May 12, 2015 was not self-executing and does not call for the dismissal of the case should Plaintiff's deposition not go forward." (Id.) Instead of dismissing the case, plaintiff's counsel proposes that "the [C]ourt simply mark the case off the trial calendar." (Id. at 1.) DISCUSSION
As a preliminary matter, it appears that the 90-day demand was not properly served on plaintiff. According to the affirmation of service, Transit Defendants served the 90-day demand by regular mail, (Gosin Affirm., Ex. D [90-Day Demand]), and not by registered or certified mail, as required by CPLR 3216 (b) (3). However, "[t]he failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny . . . a defendant's motion to dismiss for neglect to prosecute." ( Balancio v American Opt. Corp., 66 NY2d 750, 751 [1985]; cf. Carlucci v Carlucci, 140 AD2d 290, 291 [2d Dept 1988] [holding that plaintiff's failure to properly serve her 90-day demand for defendant's counterclaims was not a procedural irregularity but a fatal defect where defendant denied receipt and plaintiff "did not even produce an affidavit of service by ordinary mail"].) Here, plaintiff's counsel does not object to the service of the 90-day demand or claim that he never received the 90-day demand. Thus, because it would appear that plaintiff's counsel was not prejudiced by this procedural irregularity, the Court will consider the instant motion.
Under CPLR 3216 (b), a court cannot dismiss for failure to prosecute unless: (1) at least one year has elapsed since joinder of issue or six months have elapsed since the preliminary conference order, whichever is later; (2) "defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and [(3)] plaintiff has failed to serve and file a note of issue within the 90—day period." (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; CPLR 3216 [b].)
In addition, even after all of the above statutory requirements are met, plaintiff may still escape dismissal by showing " justifiable excuse for the delay and a good and meritorious cause of action.'" (Id., quoting CPLR 3216 [e].) Thus, CPLR 3216 has been described as "an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed." (Gibson v Fakheri, 77 AD3d 619 [2d Dept 2010] [internal citations and quotation marks omitted].) However, the Court of Appeals has also stated that: "Were courts routinely to deny motions to dismiss even after plaintiff has ignored the 90-day period without an adequate excuse, the procedure established by CPLR 3216 would be rendered meaningless." (Baczkowski, 89 NY2d at 505.)
Here, Transit Defendants have met all of the statutory elements for moving to dismiss under CPLR 3216 (b): more than a year had elapsed since issue was joined and more than six months had elapsed since the preliminary conference when Transit Defendants served a 90-day demand on plaintiff; and plaintiff has failed to serve and file a note of issue within the 90-day period.
Moreover, plaintiff's counsel has not provided a justifiable excuse for the delay and a good and meritorious cause of action. Indeed, there do not appear to be any statements in plaintiff's opposition papers regarding the meritorious nature of plaintiff's case; neither was a separate affidavit of merit attached. (See Otero v City of New York, 202 AD2d 332, 332 [1st Dept 1994] ["In the absence of an affidavit of merit, the IAS Court properly denied plaintiff's motion to vacate the prior order dismissing her complaint."].)
That plaintiff is apparently out of the country and that plaintiff's counsel "does not have a way of contacting him while he is gone" (Wolinetz Opp. Affirm. at 1) does not—without more detail regarding the circumstances of plaintiff's absence—provide a justifiable excuse for plaintiff's failure to prosecute. (See e.g. Schwartz v Allendale Garment Co., Inc., 62 AD2d 965 [1st Dept 1978] ["The political upheaval in the summer of 1974 in Portugal, where plaintiff then resided and conducted a business, as well as his house arrest for five days in July of 1974, are insufficient justification for plaintiff's default."].) At some point in the more than one year that plaintiff has been out of the country, it was plaintiff's responsibility to provide his counsel with a means of contacting him. (See Heyward v Benyarko, 82 AD2d 751, 751 [1st Dept 1981] [noting that "it is the obligation of the client to remain in contact with his attorney so that the attorney can communicate with him"].) Transit Defendants and this Court cannot be expected to wait indefinitely to see if plaintiff reappears, when plaintiff has not bothered to provide his counsel with contact information.
Moreover, prior to service of the 90-day demand, plaintiff had apparently adjourned his deposition seven times; and plaintiff's counsel has not provided this Court with any information regarding how long plaintiff has been out of the country, when plaintiff is expected to return, and why plaintiff has not appeared for a deposition despite the Court ordering plaintiff's counsel to do so over one year ago on May 12, 2015.
Plaintiff's counsel correctly states that the Court's May 12, 2015 order "was not self-executing and does not call for the dismissal of the case should Plaintiff's deposition not go forward." (Wolinetz Opp. Affirm. at 2.) That is, there was no conditional discovery sanction issued in the prior May 12, 2015 order. Nevertheless, the totality of the circumstances—the plaintiff's failure to respond to the 90-day demand, his failure to offer a justifiable excuse and meritorious cause of action, his seven deposition adjournments, and the non-compliance with the May 12, 2015 order—evince an intent by plaintiff to abandon his case.
Thus, because it is clear that plaintiff intends to abandon this action plaintiff's suggestion that the Court "simply mark the case off the trial calendar" (Wolinetz Opp. Affirm. at 1) would serve no purpose. In any event, the case was never placed on the trial calendar, because plaintiff never filed the note of issue. What plaintiff's counsel proposes would in effect adjourn this case without a date, indefinitely postponing any activity or remediation, and making it impossible to keep track of this action.
CONCLUSION
The Court having determined that the conditions precedent set forth in CPLR 3216 (b) have been satisfied and the plaintiff having failed to serve and file a note of issue within the ninety-day period set forth in said subdivision, and the plaintiff having failed to offer a justifiable excuse for the delay or demonstrate the existence of a meritorious cause of action; and further
The Court having determined that the plaintiff has adjourned his deposition more than seven times and that plaintiff's counsel has failed to comply with this Court's May 12, 2015 order, and the Court having found that such conduct and the failure to serve and file a note of issue in response to the demand therefore constitute a neglect to prosecute this action, which failures demonstrate a general pattern of delay in proceeding by plaintiff, it is now therefore
ORDERED that the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority's motion to dismiss this action is granted and the Clerk is directed to enter judgment in favor of said defendants dismissing this action, together with costs and disbursements to said defendants, as taxed by the Clerk upon presentation of a bill of costs. Dated: June 21, 2016
New York, New York
ENTER:
/s/ J.S.C.