Alveranga-Duran v. New Whitehall Apartments, L.L.C.

• Decision Date: 08 May 2007
• Docket Number: 592.
• Citation: 40 A.D.3d 287,836 N.Y.S.2d 24,2007 NY Slip Op 03976
• Parties: MARIA ALVERANGA-DURAN, Appellant, v. NEW WHITEHALL APARTMENTS, L.L.C., Respondent.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 287

836 N.Y.S.2d 24

2007 NY Slip Op 03976

MARIA ALVERANGA-DURAN, Appellant, v. NEW WHITEHALL APARTMENTS, L.L.C., Respondent.

592.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 8, 2007.

Order, Supreme Court, New York County (Jane S. Solomon,

J.), entered on or about September 25, 2006, which dismissed plaintiff's complaint at a pretrial conference for noncompliance with prior pretrial conference directives, unanimously reversed, on the facts, without costs, the complaint reinstated, the matter restored to the calendar and remanded for imposition of alternative sanctions.

In June 2004, plaintiff tenant commenced an action against defendant landlord for negligence and breach of warranty of habitability. On or about February 14, 2006, following joinder of issue and partial discovery, plaintiff filed a note of issue. Defendant thereupon moved to vacate the note of issue, alleging that discovery had not been completed. The IAS court adjourned the motion to May 8 to give the parties the opportunity to complete discovery. On that date, although discovery was still not completed, defendant withdrew its motion. The court directed that all remaining discovery matters be concluded by June 30, 2006.

Two scheduled pretrial conferences were adjourned because of the absence of one or both attorneys. On August 21, both attorneys appeared for a pretrial conference, at which time it was noted that plaintiff had still not taken defendant's deposition. The court signed an order directing another pretrial conference to be held on September 25. The order further directed plaintiff to take defendant's deposition before September 22, or the deposition would be considered waived. The order also required plaintiff's counsel to make a settlement demand prior to the conference and to have CPLR 3101 (d) expert disclosure ready to serve on defendant at the September 25 conference.

At that pretrial conference, plaintiff was represented by a per diem attorney who had no connection with plaintiff's counsel's firm and had no authority to act on the latter's behalf. The court was informed that plaintiff's counsel of record had contacted defendant's counsel on September 21 concerning defendant's deposition, but had not scheduled or taken it. Moreover, plaintiff's counsel did not make a settlement demand or serve the expert disclosure required under CPLR 3101 (d). The per diem attorney had neither such documents nor authority to make a settlement demand. Citing plaintiff's default in complying with the court order of August 21, 2006, and her failure to be represented in court by knowledgeable counsel, the court issued an order dismissing the complaint pursuant to CPLR 3404.

On October 10, 2006, plaintiff's counsel moved to vacate the dismissal order of September 25, arguing, inter alia, that he could not provide the expert disclosure because defendant's deposition had not been taken. Defendant opposed the motion, stating that its deposition...