Arnold v. Blitz

• Decision Date: 02 March 2023
• Docket Number: Index No. 805198/2016,Motion Seq. No. 003
• Citation: 2023 NY Slip Op 30628 (U)
• Parties: GABRIELA ARNOLD and CHRISTIAN ARNOLD Plaintiffs, v. NEAL BLITZ, DPM, Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 30628(U)

GABRIELA ARNOLD and CHRISTIAN ARNOLDPlaintiffs, v. NEAL BLITZ, DPM, Defendant.

Index No. 805198/2016, Motion Seq. No. 003

Supreme Court, New York County

March 2, 2023

Unpublished Opinion

MOTION DATE 11/03/2022

DECISION+ ORDER ON MOTION

HON JOHN J. KELLEY Justice

The following e-filed documents, listed by NYSCEF document number (Motion 003) 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 76, 77, 78, 79, 80, 99, 104 were read on this motion to/for DISMISSAL.

In this action to recover damages for medical malpractice, the defendant moves pursuant to CPLR 3216 to dismiss the complaint for the plaintiffs' failure to prosecute the action.The plaintiffs do not oppose the motion.The motion is granted, and the complaint is dismissed.

In the most recent status conference order issued in this action dated September 10, 2021, this court directed the plaintiffGabriela Arnold to submit to a continued deposition on or before November 10, 2021, fixed a deadline for service of post-deposition demands and responses, and set a note of issue filing deadline for March 31, 2022.On November 4 2021, the defendant's attorney contacted the plaintiffs' attorney, inquiring as to when Gabriela Arnold would be produced for a continued deposition.The defendant's attorney followed up with an almost identical email on February 3, 2022.The plaintiffs' attorney responded, suggesting that the parties might be able request the court further to extend the discovery and note of issue filing deadlines, but he neither scheduled the deposition nor contacted the court to request an additional conference or an extension of any deadline.March 31, 2022 passed, without the defendant conducting a further deposition of Gabriela Arnold and without the plaintiffs filing a note of issue.On April 26, 2022, the defendant's attorney again wrote the plaintiff's attorney, again requesting him to produce Gabriela Arnold for a continued deposition.After receiving no further communications from the plaintiffs' attorney, the defendant's attorney, on June 8, 2022, served the plaintiffs' attorney by certified mail with a CPLR 3216 notice to resume prosecution by filing a note of issue within 90 days after the notice was served.The notice further informed the plaintiffs that their failure to file a note of issue within 90 days would form the predicate for a motion to dismiss the complaint for failure to prosecute.The plaintiffs' attorney received the notice on June 11, 2022.The defendant made the instant motion to dismiss the complaint on October 4, 2022(seeCPLR 2211).Rather than opposing the motion, the plaintiffs simply filed a note of issue on October 6, 2022.

CPLR 3216(a) provides that

"[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, ... upon motion, with notice to the parties, may dismiss the party's pleading on terms.Unless the order specifies otherwise, the dismissal is not on the merits."

To secure a dismissal pursuant to CPLR 3216, issue must have been joined and either one year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of any preliminary court conference order, whichever is later (seeCPLR 3216[b]).In addition, the defendant must have served a written demand upon the plaintiff by registered or certified mail, directing the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of such demand (seeid.).The demand also must give notice to the plaintiff that a default in complying with such demand within that 90-day period will serve as a basis for a motion dismissing the complaint as against that defendant for unreasonable neglect to proceed (seeid.).In the event that the plaintiff fails to serve and file a note of issue within such 90-day period, the court may grant a motion by the party seeking dismissal, unless the plaintiff shows justifiable excuse for the delay and a good and meritorious cause of action (seeCPLR 3216[e]).

"Having received the 90-day notice, the plaintiff was required to file a note of issue or move, before the default date, to vacate the 90-day demand or to extend the 90-day period"(Worldwide Ins. Brokerage, Ltd. v New City Mgt, LLC,172 A.D.3d 1282, 1282[2d Dept2019]).Dismissal thus is warranted pursuant to CPLR 3216 where a defendant timely and properly serves a 90-day notice, and a plaintiff fails to show, in opposition, that it did not intend to abandon prosecution of the action, that his or her history of extensive delay was justified, and that he or she had a meritorious claim (seeThompson v Beth Israel Med. Ctr.,178 A.D.3d 468[1st Dept2019];see alsoMosberg v Elahi,80 N.Y.2d 941, 942[1992][plaintiff opposing a CPLR 3216 motion must demonstrate the existence of a "good and meritorious cause of action"];Garofalo v Mercy Hosp.,271 A.D.2d 642, 643[2d Dept2000][opponent of CPLR 3216 motion must establish "a meritorious claim and excusable delay"]).

Here issue was joined by the defendant when it served an...