On October 22, 2008, the following papers were read on motion by Claimant for
an order vacating dismissal of the claim and related relief.
Notice of Motion, Affirmation and Exhibits Annexed
Opposing Affirmation and Exhibits Annexed
Upon the foregoing papers, this motion is denied.
By notice of motion filed with the Clerk of the Court on July 24, 2008, and
served by mail upon the Defendant on July 14, 2008, Claimant seeks an order
pursuant to CPLR 5015 and CPLR 2004 vacating the dismissal of this claim filed
on August 2, 2007, and related relief. The motion was made returnable on
September 17, 2008, and the Defendant filed its opposing affirmation on
September 5, 2008. At the Claimant’s request, this matter was adjourned
on September 15, 2008 until October 22, 2008. Claimant’s timely reply
affirmation was filed on October 14, 2008.
The history of this claim and the relief sought warrant an extensive
recitation of prior motion practice and the journey which necessitates the
In a decision and order filed on January 13, 2005, I summarized the nature of
the claim and procedural history regarding scheduling orders, noting that on
March 25, 2004 I directed Claimant’s counsel to resume prosecution by
serving and filing a note of issue and certificate of readiness (CPLR
3216[b]) within 90 days or face dismissal of the claim for want of
prosecution (CPLR 3216[a]).
counsel dutifully filed a note of issue on June 17, 2004, with the certificate
of readiness, which caused the Defendant to file Motion No. M-68695 to
In granting that motion, I made my
While Claimant’s counsel has demonstrated a blatant disregard of my
scheduling order and made disingenuous assertions in the certificate of
readiness and generally demonstrated a degree of contempt for the Court’s
authority, I will not, at this time, impose any sanctions on him.
Counsel’s future conduct and his compliance with future orders will guide
any reconsideration of this question.
A little more than one year later, on March 6, 2006, Claimant filed Motion No.
M-71365 seeking to amend the amended preliminary conference order of February
10, 2005, relief that was granted conditionally and otherwise
The amended scheduling order of February 10, 2005, issued only after conferring
with Claimant’s counsel, had been ignored with impunity. Once again I was
forced to recite a litany of excuses proffered by Claimant’s counsel,
including a mischaracterization of a determination of a summary judgment motion
in a related Supreme Court proceeding in Wyoming County. Of significance in the
motion of March 2006, was Claimant’s counsel’s mistaken affirmation
that “[a]t no time was a 90-day notice served on this case.” I
observed then and again today, that on March 25, 2004, counsel was served with
the first 90-day notice to file a note of issue and certificate of
Nonetheless, after the February 10, 2005 scheduling order, counsel did
absolutely nothing more than send a letter on February 25, 2005 to the
Defendant, and apparently abandoned pursuit of the instant claim until more
than one year later when, on March 6, 2006, Motion No. M-71365 was filed.
I found Claimant’s counsel’s actions unbelievably and indefensibly
deficient, particularly given the forewarning in Motion No. M-68695 about the
possible imposition of sanctions. I imposed a fine of $750.00 for
counsel’s ongoing contemptuousness and cavalier lack of respect of this
Court, which was duly paid to the Lawyers’ Fund for Client Protection of
the State of New York (see, State Finance Law §97-t).
Thereafter, after a preliminary conference held on June 21, 2006, with local
counsel appearing on behalf of Mr. Berkman, a new amended preliminary conference
order dated June 22, 2006, was issued (Exhibit A to Defendant’s opposing
affirmation), directing, inter alia, the filing of a note of issue and
certificate of readiness on or before February 15, 2007.
With nary a word from Claimant or his counsel, despite the peradventures
reviewed above, nearly two months after the court-ordered February 15,
2007 deadline had expired, I issued a second CPLR 3216 90-day notice on
April 9, 2007 to resume prosecution, and noting that “[i]f there are any
unresolved issues preventing [counsel] from filing the Notice of Issue and
Certificate of Readiness, please advise” (Exhibit L to Claimant’s
motion papers). By letter dated May 23, 2007, Claimant’s counsel wrote to
the Defendant, with a copy to the Court, seeking to have Defendant contact his
office with “your availability to hold depositions and the names and
addresses of your designated doctors, so that discovery could be completed
within the 90-day time frame in order to prevent [dismissal]”
(Claimant’s Exhibit M).
There was no further communication to the Court from either party.
Accordingly, on July 24, 2007, some 100 days after written confirmation of
receipt of the second 90-day notice to resume prosecution, Claim No.
105385 was dismissed for the failure to prosecute.
On August 9, 2007, Claimant’s counsel wrote to the Court seeking
reconsideration of dismissal and the grant of an extension of time to file the
note of issue (Claimant’s Exhibit O). I responded on August 10, 2007,
Court-ordered deadlines have meaning. This claim has been dismissed and any
further proceedings in this matter must proceed by formal motion practice or
That brings us to the instant motion filed with the Clerk on July 24, 2008, the
one-year anniversary date of dismissal.
Counsel recites the allegations that Claimant, then an inmate in the custody of
the Department of Correctional Services (DOCS) was a passenger in a van owned by
the Defendant and that he was injured in a motor vehicle accident in a collision
involving two other non-State vehicles. While counsel ascribes the accident and
Claimant’s injuries to have been caused “solely and wholly, through
and by reason of the negligence, carelessness and recklessness of the Defendant,
by and through its agents, servants and/or employees” (unnumbered
paragraph, p. 4 of counsel’s affirmation), it is affirmed that an
“action was instituted against the owners and operators of the non-State
vehicles in Supreme Court ... and ultimately disposed of by settlement to which
all non-State parties were contributors” (unnumbered parenthetical
paragraph on p. 5 of counsel’s affirmation).
There is a seeming incongruity of alleging that the injuries were caused
“solely and wholly” by the culpable conduct of the Defendant State
of New York, yet referencing a settlement contributed to by all non-State
parties, to wit, the owners and operators of the other two vehicles involved in
the accident. Query: why would such parties contribute to a settlement when
Claimant alleges, in his moving papers today, only the whole and sole culpable
conduct of the State of New York? This clearly undermines Claimant’s
arguments espousing a meritorious claim. In any event, neither CPLR 5015 nor
CPLR 2004, upon which Claimant relies here, references meritoriousness as the
basis for judicial review.
Claimant’s counsel relies heavily on his May 23, 2007 letter
(Claimant’s Exhibit M) as evidencing a response to the invitation to
advise me “[i]f there are any unresolved issues preventing [counsel] from
filing the Note of Issue and Certificate of Readiness” (Exhibit L to
Claimant’s motion papers). Claimant’s letter was addressed to the
Defendant, and, as noted above, seeks only to arrange dates for depositions and
a possible independent medical examination. If one were to read only the
Claimant’s moving papers one would think that the Defendant stonewalled,
was recalcitrant and was unable to produce the witnesses in a timely fashion to
meet the 90-day note of issue deadline.
But the Defendant demonstrates the converse. In an October 27, 2006 letter
(Defendant’s Exhibit C), it provided a verified bill of particulars, and a
copy of its demand for a bill of particulars and other demands, and includes
counsel’s availability for depositions during the week of December 4,
2006, noting the necessity of answers to its demands prior to the depositions.
Defendant reiterated the same predeposition discovery demand in its letter of
April 25, 2007 (Exhibit D), as well as referencing the Claimant’s failure
to have provided the pleadings and depositions from the companion Supreme Court
Claimant finally supplied his discovery responses, dated May 8, 2007, and
provided all pleadings pertaining to the companion Supreme Court action by
Fed-Ex on May 11, 2007. He blames the Defendant for its recalcitrance in the
production of its witnesses for deposition until August 6, 2007, noting that the
depositions took place after the claim had been dismissed on July 24, 2007, but
before either party had received notice thereof on August 7, 2007.
I will digress here for a moment from my chronological recitation, to address
Claimant’s somewhat galling insinuation, repeated at least twice in his
affirmation and reply affirmation: “[N]onetheless, the Court, sua
sponte, dismissed Claimant’s claim pursuant to CPLR 3216.” This
of course implies that the Court dismissed the claim without any prior notice to
Claimant. Nothing could be further from reality. I quote from the second CPLR
3216 90-day letter:
If a Note of Issue is not filed within that time, the Court will, without
further notice, dismiss the claim for want of prosecution (CPLR 3216[a])
Indeed, one might posit that rather than a supposed sua sponte
unilateral action by the Court, it is the Claimant and his counsel who
defaulted despite written notice of the Court’s demand to continue
prosecuting the claim. Not only did Claimant and his counsel fail to comply
with a written notice to resume prosecuting the claim, they defaulted on even
contacting the Court directly prior to dismissal.
Furthermore, Claimant affirms that “[i]n light of the fact [sic] that
Claimant’s failure to file his Note of Issue pursuant to the Court’s
directive of April 9, 2007, was substantially due and owing to the failure of
the Defendant to schedule the depositions of its witnesses within the time frame
established by the Court,”
he sought a stipulation to vacate the
dismissal, an invitation that was declined (see unnumbered paragraphs on pp. 7-8
of Claimant’s counsel’s affirmation). To the extent that Claimant
implies Defendant’s unwarranted obstruction in declining to stipulate to
vacate the default by relying upon Vehicle and Traffic Law §1104, such a
position is clearly arguable (see e.g. Christopher v State of New
, UID #2008-031-036, Claim No. 108185, Motion Nos. M-74989, CM-75067,
July 11, 2008, Minarik, J.; accord Pacheco v State of New York
UID #2007-009-044, Claim No. 113861, Motion Nos. M-73766, CM-73877, Jan. 3,
2008, Midey, J.),
and, in any event, the
demurral of the Defendant from entering into such a stipulation has no bearing
on the instant motion.
Claimant had not even responded to Defendant’s discovery demands until
May 7, 2007, despite the clear precondition for responses before depositions
could be conducted. Moreover, in June 2007, Defendant had offered dates for
depositions and memorialized Claimant’s failure to acknowledge or respond
(Defendant’s Exhibit E).
So there is a clear pattern of Claimant’s counsel blaming the Court for a
dismissal, and blaming the Defendant for stonewalling and
recalcitrance in scheduling the depositions. There is no contriteness or
acknowledgment of Claimant or his counsel’s possible responsibility for
the situation in which he now finds himself.
It is, in my opinion, further evidence of his feckless professional conduct over
the past several years.
This bewildering silence comes in the face of two earlier motions where
counsel’s behavior in ignoring the Court’s deadlines and orders was
overtly highlighted and was accompanied by a sanction.
Claimant has reminded the Court of the strong public policy favoring resolution
of matters on the merits, a principle which this Court vigorously supports.
Claimant asserts that he has a reasonable excuse for his default, all of which
he lays at the feet of the Defendant’s scheduling impediments, and offers
his letter of May 23, 2007 (Claimant’s Exhibit M) as making the Court
“aware of the fact that Claimant was experiencing scheduling difficulties
with regard to the depositions of the State employees” (unnumbered
paragraph on unnumbered p. 2 of Claimant’s reply affirmation). No reading
of that letter, even extending reason to the outer edges of reality,
intimates that there were “scheduling difficulties.” No doubt
Claimant was aware of scheduling deadlines, but the letter neither impliedly or
implicitly addresses scheduling difficulties.
Even if one could extrude such an inference, it does not explain why no letter
was directed to the Court expressing such concerns, or why Claimant failed to
communicate directly with the Court until after the dismissal order was entered.
Claimant has no excuse, reasonable or otherwise, for his failure.
Claimant brings the Court’s attention to the amendment to CPLR 205(a),
effective July 7, 2008, nearly one year after the dismissal here, which now
requires a court to set forth the specific conduct constituting the neglect and
the general pattern of delay in proceeding with the litigation. While not
statutorily obligated to do so, the laborious and painful history of the delay
and neglect of the prosecution of this matter has been detailed above, and is
intended to comply with the spirit of Chapter 156 of the Laws of 2008, and to
allow a comprehensive examination of the reasons for my denial of this motion by
what I anticipate is an inevitable appellate review.
Even Claimant’s argument with respect to the meritorious nature of his
claim is belied by his assertion of the State’s sole culpability for the
accident and injuries, yet his settlement with all other owners and operators of
the two non-State vehicles involved in the accident.
While it may not be fully analogous to the issue at bar, the Court of Appeals
decision in Brill v City of New York, 2 NY3d 648, 650, addressed the
timing of summary judgment motions “that ignores statutory law, disrupts
trial calendars, and undermines the goals of orderliness and efficiency in state
court practice.” In examining what constitutes good cause for the delay
in making such motion, the Court held, at page 652:
We conclude that “good cause” in CPLR 3212 (a) requires a showing of
good cause for the delay in making the motion--a satisfactory explanation for
the untimeliness--rather than simply permitting meritorious, nonprejudicial
filings, however tardy.... No excuse at all, or a perfunctory excuse, cannot be
The proffered excuse is perfunctory at best, and at worst is hollow and devoid
of merit. I therefore find it unnecessary to address the Defendant’s
assertion of prejudice due to the retirement of Correction Officer Mruzik after
August 6, 2007.
Accordingly, based upon the above, and due consideration of the papers before
me, the motion is denied.