Edp Hospital Computer Systems, Inc. v. Bronx-Lebanon Hospital Center

• Decision Date: 20 December 2004
• Docket Number: 2003-05809.,2003-10228.
• Citation: 789 N.Y.S.2d 50,2004 NY Slip Op 09459,13 A.D.3d 476
• Parties: EDP HOSPITAL COMPUTER SYSTEMS, INC., Respondent, v. BRONX-LEBANON HOSPITAL CENTER, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 476

789 N.Y.S.2d 50

2004 NY Slip Op 09459

EDP HOSPITAL COMPUTER SYSTEMS, INC., Respondent, v. BRONX-LEBANON HOSPITAL CENTER, Appellant.

2003-05809.

2003-10228.

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

December 20, 2004.

In an action, inter alia, to recover damages for breach of an oral agreement, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Queens County, dated May 5, 2003 (Weiss, J.), as denied its cross motion to dismiss the complaint for failure to prosecute, or alternatively, for summary judgment dismissing the complaint, and (2) from an order of the same court dated September 11, 2003, which granted the plaintiff's motion to strike its "restated notice of depositions" and denied its cross motion to compel the plaintiff to comply with the "restated notice of depositions."

Ordered that the order dated May 5, 2003, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated September 11, 2003, is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion to strike the "restated notice of depositions" is denied, and the cross motion to compel the plaintiff to comply with the restated notice of depositions is granted.

In this action commenced in 1992, the plaintiff alleged that the defendant, inter alia, breached an oral agreement for the plaintiff to provide computer support services. Discovery proceeded through 1995, but over the next seven years, the plaintiff took virtually no additional steps to prosecute the action.

By letter dated September 24, 2002, the defendant made a written demand pursuant to CPLR 3216 for the plaintiff to serve and file a note of issue within 90 days. In response, the plaintiff attempted to file a note of issue and certificate of readiness sometime in late December 2002, just days before the expiration of the 90-day deadline. The note and certificate, however, were rejected by the Trial Term office of the Supreme Court, Queens County, on or about December 24, 2002, because, unbeknownst to the plaintiff, the action had been marked "inactive" as of October 12, 1996. Following instructions provided by the Trial Term office, the plaintiff then moved in January 2003 to restore the case to "active" status. The defendant cross-moved pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, or alternatively, for summary judgment dismissing the complaint on the ground, inter alia, that enforcement of the oral agreement was barred by the statute of frauds (see General Obligations Law § 5-701 [a] [1]). The Supreme Court granted the motion and denied the cross motion. The defendant subsequently served a "restated notice of depositions" to take the depositions of certain officers and employees of the plaintiff. The plaintiff moved to strike the restated notice of depositions, and the defendant cross-moved to compel further discovery. The Supreme Court granted the motion and denied the cross motion. These appeals followed.

Contrary to the defendant's contention, that branch of its cross motion which was to dismiss the complaint for failure to prosecute pursuant to CPLR 3216 was properly denied. Following receipt of the defendant's demand pursuant to CPLR 3216 (b) (3), the plaintiff timely mailed to the defendant's counsel, and timely attempted to file with the Supreme Court, a note of issue and certificate of readiness. The Trial Term office improperly rejected the filing, however, because the action had been marked "inactive" (see ...