Benitez v. Mutual of America Life Insurance Company

• Citation: 808 N.Y.S.2d 698,24 A.D.3d 708,2005 NY Slip Op 10094
• Decision Date: 27 December 2005
• Docket Number: 2004-02429.
• Parties: CONRADO BENITEZ, Appellant, v. MUTUAL OF AMERICA LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent. GENERAL INDUSTRIAL SERVICE CORPORATION et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court Appellate Division

24 A.D.3d 708

808 N.Y.S.2d 698

2005 NY Slip Op 10094

CONRADO BENITEZ, Appellant, v. MUTUAL OF AMERICA LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent GENERAL INDUSTRIAL SERVICE CORPORATION et al., Third-Party Defendants-Respondents.

2004-02429.

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

December 27, 2005.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Grays, J.), entered February 25, 2004, which, upon an order of the same court dated November 28, 2003, denying his motion to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to the active calendar, and to file a note of issue, dismissed the action.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiff's contentions, the compliance conference order had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Vinikour v. Jamaica Hosp., 2 AD3d 518, 519 [2003]; Aguilar v. Knutson, 296 AD2d 562 [2002]; Werbin v. Locicero, 287 AD2d 617 [2001]). Having received a 90-day notice, the plaintiff was required to either timely file a note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004 (see Bokhari v. Home Depot U.S.A., 4 AD3d 381 [2004]; McKinney v. Corby, 295 AD2d 580, 581 [2002]). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

A case dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see Sapir v. Krause, Inc., 8 AD3d 356, 356-357 [2004]; Lopez v. Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). The plaintiff failed to offer a reasonable excuse for his lengthy delay after the 90-day notice in moving for leave to file a note of issue (see Sapir v. Krause, Inc., supra). Accordingly, the plaintiff's motion was properly denied.

The dissent erroneously notes that this Court held in Boland v. Biordi (282 AD2d 421 [2001]), that a Supreme Court order directing that a note of issue be filed did not constitute a valid 90-day notice on the ground, inter alia, that it was issued four months after issue had been joined in the third-party action. This Court did note that fact by way of background, but an examination of the record in that case reveals that there, the purported 90-day notice was issued as of a date when disclosure was not completed (despite a contrary pre-printed statement in a form order containing the CPLR 3216 notice), and the Supreme Court so-ordered a handwritten stipulation on that same date providing that the plaintiffs had to respond to certain of the third-party defendants' discovery demands by a date certain, and that no note of issue could be filed prior to service of those responses. Under those circumstances, it was sensible to conclude that the purported 90-day notice was invalid inasmuch as on the same date it issued, another order issued essentially precluding the plaintiffs from complying with the 90-day notice until the subject disclosure was completed. The facts at bar are different.

H. Miller, J.P., Mastro and Lifson, JJ., concur.

Goldstein, J., dissents and votes to reverse the judgment appealed from, grant the plaintiff's motion, deny the defendant's cross motion, and modify the order accordingly with the following memorandum, with which S. Miller, J., concurs:

The instant action seeks damages for personal injuries allegedly sustained on October 5, 1993 when the plaintiff, an employee of the second third-party defendant, Safeway Environmental Corporation (hereinafter Safeway), performing asbestos removal at the defendant's premises, fell from a ladder. The action was commenced on or about December 12, 1994 against the owner of the premises, Mutual of America Life Insurance Company (hereinafter the defendant), alleging common-law negligence and violation of Labor Law §§ 200, 240, and 241 (1). Issue was joined in the main action on March 16, 1995. On March 6, 1996 the defendant commenced a third-party action against the third-party defendant General Industrial Service Corporation (hereinafter the third-party defendant) who in turn commenced a second third-party action on November 8, 1999 against Safeway.

On November 18, 1999 the plaintiff, the defendant, and the third-party defendant appeared at a compliance conference. The plaintiff asked that the newly-commenced second third-party action against Safeway be severed from the main action. Upon the objections of the defendant and the third-party defendant to severance, the plaintiff's application was denied. On November 19, 1999 the court issued a compliance conference order which directed the plaintiff to respond to certain discovery demands by December 2, 1999 and file a "note of issue/certificate of readiness on or before Feb. 18, 2000."

Issue was not joined in the second third-party action until December 22, 1999 when Safeway served an answer, a demand for a bill of particulars from the plaintiff and the defendant, and a demand for copies of all prior pleadings, insurance policies, and statements. A further deposition of the plaintiff scheduled for January 10, 2000 was adjourned to permit Safeway to review the materials.

On or about February 8, 2000 the defendant scheduled a physical examination of the plaintiff for March 16, 2000. The plaintiff was unable to keep this appointment on the ground that he was out of the country in Colombia and not expected to return until May 18, 2000. No attempt was made to reschedule the deposition or the physical examination. On February 8, 2002 the plaintiff attempted to file a note of issue and was informed that the court records reflected that the action had been "disposed" on the ground that the note of issue was due on March 10, 2000 and an "order to restore" was required.

The plaintiff moved to restore the action and the defendant cross-moved to dismiss pursuant to CPLR 3216 on the ground that the plaintiff failed to file a note of issue by February 18, 2000, the date set forth in the compliance conference order dated November 19, 1999. In opposition to the cross motion, the plaintiff argued that the compliance conference order did not constitute a valid demand for a note of issue on the ground that issue had not been joined in the second third-party action against Safeway. The Supreme Court denied the plaintiff's motion and granted the cross motion, holding that the compliance conference order constituted a valid demand for a note of issue and the plaintiff failed to give an adequate excuse for the delay.

Pursuant to CPLR 3216 (a), an action may be dismissed where a plaintiff delays in the prosecution of an action "against any party who may be liable to a separate judgment." Since the second third-party action had not been severed from the main action, the defendant could not be "liable to a separate judgment" (CPLR 3216 [a]) from any judgment disposing of the second third-party action (see Stevenson v. Lazzari, 16 AD3d 576 [2005]; Bennett v. Long Is. Light. Co., 262 AD2d 437 [1999]). Therefore, in determining the applicability of CPLR 3216 to the defendant in the main action, the status of the second third-party action must be considered.

CPLR 3216 (b) sets forth requirements which are to be construed as conditions precedent to dismissal (see Airmont Homes v. Town of Ramapo, 69...