Baczkowski v. D.A. Collins Const. Co., Inc.

Citation655 N.Y.S.2d 848,678 N.E.2d 460,89 N.Y.2d 499
Parties, 678 N.E.2d 460 George BACZKOWSKI, Appellant, v. D.A. COLLINS CONSTRUCTION COMPANY, INC., Respondent and Third-Party Plaintiff, et al., Third-Party Defendant.
Decision Date20 March 1997
CourtNew York Court of Appeals
OPINION OF THE COURT

CIPARICK, Judge.

The Appellate Division dismissed plaintiff's complaint for neglect to prosecute pursuant to CPLR 3216. The question on appeal is whether plaintiff proffered a justifiable excuse for past delay and for failing to file a note of issue within 90 days after receiving a demand to do so from defendant. We hold that plaintiff failed to tender a justifiable excuse and, accordingly, the Appellate Division properly dismissed plaintiff's complaint.

This action stems from construction-site injuries sustained by plaintiff on November 18, 1986. Plaintiff was operating a truck owned by defendant D.A. Collins Construction Co. and had driven the vehicle atop a hill when the vehicle's brakes allegedly failed. As the truck started to roll down the hill, plaintiff jumped out and was injured when he hit the ground.

On November 2, 1989, plaintiff commenced this action in negligence and strict products liability by service of a summons and notice. Plaintiff thereafter served a complaint on defendant on December 26, 1989. On January 8, 1990, defendant answered plaintiff's complaint, and, on November 19, 1990, commenced a third-party action against plaintiff's employer, Kubricky Construction Corp. Very little activity occurred in the action during the next four years, aside from defendant taking plaintiff's deposition in February 1991 and September 1992.

On July 27, 1994, defendant served a demand on plaintiff to resume prosecution of the action and file a note of issue within 90 days (see, CPLR 3216[b][3] ). Plaintiff did not file a note of issue within the 90-day period and took no other step to indicate an intention to proceed with the action. On December 13, 1994, 139 days after serving the 90-day demand, defendant moved to dismiss plaintiff's complaint pursuant to CPLR 3216. Plaintiff submitted no papers opposing the motion to dismiss. Instead, on January 20, 1995, 10 days before the return date of defendant's motion and 87 days after the expiration of the 90-day period, plaintiff filed a note of issue.

On April 13, 1995, Supreme Court preliminarily ruled on the motion by issuing a conditional order of dismissal, granting plaintiff an additional 30 days to demonstrate a justifiable excuse for the delay and to submit an affidavit of merit. In response, plaintiff submitted a two-page attorney's affidavit stating that the delay was attributable to uncertainty over the status of third-party discovery requests, as evidenced by plaintiff's written inquiries directed to defendant in September and November 1993. Plaintiff's counsel also explained that on December 21, 1994, his secretary attempted to file a note of issue, but, because she was unfamiliar with recent amendments to the CPLR, her endeavors proved unsuccessful. In lieu of an affidavit of merit from plaintiff, his attorney submitted plaintiff's deposition transcript.

Supreme Court thereafter denied defendant's motion to dismiss, concluding that plaintiff established a justifiable excuse and a meritorious cause of action. The Appellate Division reversed, with two Justices dissenting. The Court held that plaintiff did not demonstrate a justifiable excuse for failing to comply with the 90-day requirement of CPLR 3216 and dismissed the action. Plaintiff appealed to this Court as of right (see, CPLR 5601[a] ), and we now affirm.

CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals. The provision has a checkered history, which this Court has recounted on prior occasions (see, e.g., Chase v. Scavuzzo, 87 N.Y.2d 228, 231-233, 638 N.Y.S.2d 587, 661 N.E.2d 1368; Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 244-246, 303 N.Y.S.2d 633, 250 N.E.2d 690; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:1-C3216:4, at 628-635). As a result of a 1967 amendment to CPLR 3216, courts are prohibited from dismissing an action for neglect to prosecute unless the statutory preconditions to dismissal are met (see, CPLR 3216[b]; Cohn, supra, 25 N.Y.2d, at 246, 303 N.Y.S.2d 633, 250 N.E.2d 690).

CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90-day period (CPLR 3216[b] ). So long as plaintiff serves and files a note of issue within the 90-day period, all past delay is absolved and the court is then without authority to dismiss the action (CPLR 3216[c] ). However, if plaintiff fails to file a note of issue within the 90-day period, "the court may take such initiative or grant such motion [to dismiss] unless the [defaulting] party shows justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e] ). Thus, even when all of the statutory preconditions are met, including plaintiff's failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse and an affidavit of merit. If plaintiff makes a sufficient showing, the court is prohibited from dismissing the action.

In this case, the Appellate Division held that plaintiff failed to demonstrate a justifiable excuse for not complying with the 90-day requirement. In view of plaintiff's persistent neglect despite repeated opportunities to resume prosecution of the action and the absence of any timely proffered reasonable excuse for the extensive delay, we agree that dismissal was proper in this case (see, Sortino v. Fisher, 20 A.D.2d 25, 28-32, 245 N.Y.S.2d 186; see generally, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3216:29-C3216:31, at 656-659 [discussing factors considered on CPLR 3216 motion] ).

After commencement of the action in 1989, the action remained virtually dormant for nearly five years, with little indication by plaintiff that he was inclined to proceed. Even after defendant served the 90-day demand...

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