Grant v. City of New York

• Decision Date: 19 April 2005
• Docket Number: 5668.
• Citation: 793 N.Y.S.2d 35,2005 NY Slip Op 02971,17 A.D.3d 215
• Parties: JUANITA GRANT, Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 215

793 N.Y.S.2d 35

2005 NY Slip Op 02971

JUANITA GRANT, Appellant, v. CITY OF NEW YORK, Respondent.

5668.

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

April 19, 2005.

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered on or about December 16, 2003, which denied plaintiff's motion to vacate defendant's 90-day notice, compel defendant to comply with discovery demands and permit plaintiff to file her note of issue upon completion of discovery, and granted defendant's CPLR 3216 cross motion to dismiss, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, plaintiff's motion granted, defendant's cross motion denied, and the complaint reinstated.

Plaintiff alleges that she was injured on August 2, 1996 while employed in construction work on the Madison Avenue Bridge, owned by defendant City of New York. She commenced this personal injury action against the City on or about October 6, 1997. Issue was joined in December 1997. Apparently, defendant also served a demand for a bill of particulars and a demand for discovery, because on or about April 23, 1998, plaintiff served on defendant a verified bill of particulars, a response to defendant's discovery demand, and her own discovery demands. Although defense counsel states that the City "served responses to plaintiff's discovery demands," from the record it appears that plaintiff's counsel is correct in stating that defendant never responded to the majority of plaintiff's discovery demands, most crucially her notice for discovery and inspection of various documents. No further action was taken in the case after plaintiff's service of the foregoing documents, until five years later.

Defendant sent a 90-day notice dated July 8, 2003 by regular mail; the record does not reflect when it was mailed or what date it was received, although plaintiff acknowledges its receipt. By notice of motion dated October 7, 2003, plaintiff moved to vacate the notice and restore the case to active status, and permit the filing of a note of issue following the completion of discovery. Defendant's cross motion to dismiss the action followed.

The motion court erred in denying plaintiff's motion and dismissing the action on grounds that plaintiff failed to provide a justifiable excuse for the failure to prosecute or the existence of a good and meritorious cause of action.

Initially, the observation by the motion court that the matter was marked off the calendar "by order of July 7, 1999" does not justify a conclusion that the matter must be deemed abandoned. This "order" was presumably a computer entry following the calling of a prenote calendar. However, while CPLR 3404 directs that an action marked "off" or struck from the calendar or unanswered on a clerk's calendar call and not restored within a year, is to be "deemed abandoned and . . . dismissed . . . for neglect to prosecute," that provision does not apply to cases in which a note of issue has not been filed (Johnson v Sam Minskoff & Sons, 287 AD2d 233 [2001]). Since no note of issue had been filed in this matter, CPLR 3216 rather than section 3404 was the applicable provision (see Lourim v Keystone Shipping Co., 302 AD2d 313 [2003]).

Defendant sufficiently satisfied the preconditions to dismissal required by CPLR 3216 (b) (3). Although defendant mailed the notice by regular mail rather than by registered or certified mail as directed by CPLR 3216 (b) (3), the irregularity is not fatal here, inasmuch as plaintiff admittedly received the notice (see Balancio v American Opt. Corp., 66 NY2d 750 [1985]).

Nevertheless, dismissal was not warranted.

The motion court held that plaintiff was required to demonstrate both a reasonable excuse and the existence of a meritorious cause of action. We disagree. CPLR 3216 (e) requires a showing of justifiable excuse and a meritorious cause of action when the party served with a 90-day notice "fails to serve and file a note of issue within such ninety day period." Although it does not specifically discuss the possibility that a plaintiff might instead, within that time period, need to seek an extension of time in order to complete discovery before filing a note of issue, numerous cases establish that a motion seeking such an extension constitutes a sufficient, timely response to a 90-day notice. These cases explain that a plaintiff who fails to comply with a 90-day notice "either by timely filing [of] a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004," is in default of the notice and therefore must demonstrate a reasonable excuse and a good and meritorious cause of action to avoid the sanction of dismissal (see Papadopoulas v R.B. Supply Corp., 152 AD2d 552, 553 [1989] [emphasis supplied]; see also Abelard v Interfaith Med. Ctr., 202 AD2d 615 [1994]). Conversely, these cases suggest, making an application to extend plain...