Guerrier v. 50 Pine Inc.

• Decision Date: 20 December 1974
• Citation: 367 N.Y.S.2d 141,81 Misc.2d 982
• Parties: Alix GUERRIER, Plaintiff, v. 50 PINE INC., Defendant.
• Court: New York City Court

Page 141

367 N.Y.S.2d 141

81 Misc.2d 982

Alix GUERRIER, Plaintiff, v. 50 PINE INC., Defendant.

Civil Court of the City of New York, New York County.

Dec. 20, 1974.

Joseph Kelner, New York City, for plaintiff.

Tropp, Goldfinger & Berson, New York City, for defendant.

STANLEY P. DANZIG, Judge.

The defendant moves to dismiss the complaint for delay in prosecution pursuant to CPLR 3216.

The defendant followed the 45-day demand procedure of CPLR 3216 and bases its motion on plaintiff's failure to comply therewith by filing a note of issue within 45 days. There has been a 30 month delay in prosecution since issue was joined and the action has not yet been placed upon the calendar.

The purpose of CPLR 3216 is to forgive all past delay, however long, if the note of issue is filed within 45 days after receipt by plaintiff of the demand to file. Giancone v. City of New York, 29 A.D.2d 756, 287 N.Y.S.2d 916 (1st Dep't 1968).

The issue here is whether, under the circumstances of this case, the plaintiff lost the CPLR 3216 immunity from dismissal for general delay in prosecution because he failed to notice the case for trial within the 45 day period.

If the plaintiff lost his right to immunity from dismissal provided by CPLR 3216(b), he is relegated to the guidelines of Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186 (1st Dep't 1963) and the length of delay in prosecution prior to service of the 45 day notice becomes a factor in determining the motion on the merits.

'(T)he 45 day period in CPLR § 3216(b) is not a statute of limitations and is therefore subject to the court's broad and pervasive power to extend time under CPLR 2004.' Jagel v. Republic Ins. Co., N.Y.L.J. October 15, 1974, p. 2, col. 5 (App.T., 1st Dep't).

If the failure to file the note of issue after receipt of the 45 day notice is due to lack of diligence on the part of the plaintiff, delay prior to the notice may be considered. However, '(I)t must be borne in mind, moreover, that dismissal is a harsh penalty imposed on a client for his lawyer's failures; justified annoyance by the court at a lawyer's procrastinations should not be vented on the litigant with a meritorious claim by closing the courts to him. If the action has merit, lesser penalties for delay are warranted.' 4 Weinstein Korn and Miller Par. 3216.04, p. 32--201.

Furthermore, there is strong public policy which requires that actions be disposed of on the merits. Moran v. Rynar, 39 A.D.2d 718, 332 N.Y.S.2d 138 (2d Dep't 1972); Springer v. Marangio, 38 A.D.2d 852, 330 N.Y.S.2d 100 (2d Dep't 1972). '(W)e have held that an attorney's neglect or inadvertent error should not deprive his client of his day in court; and that it is proper to save the action for the client, while imposing upon the attorney, personally, a penalty for his neglect.' Moran v. Rynar, Supra, 39 A.D.2d at 719, 332 N.Y.S.2d 141. In both Urban v. Maloney, 40 A.D.2d 531, 334 N.Y.S. 122 (2d Dep't 1972) and Williams v. Jewish Hosp. of Brooklyn, 40 A.D.2d 532, 334 N.Y.S.2d 227 (2d. Dep't 1972), the attorney's fault in failing to respond to a 45 day notice was not condoned and $250.00 costs were imposed upon him personally; but in the interests of justice, the plaintiff was given an opportunity to place his case upon the calendar.

Plaintiff's attorney advises that eight days after its receipt, the 45 day notice was destroyed in his law office fire on the Saturday of June 29, 1974. The fire...