Hansel v. Lamb
| Decision Date | 05 October 1995 |
| Parties | Sheldon HANSEL and Hope Hansel, Plaintiffs, v. Theodore E. LAMB, Jr., Defendant. |
| Court | New York Supreme Court |
James C. Gacioch, O'Connor, Gacioch & Pope, L.L.P., Binghamton, for Defendant.
Plaintiffs bring the underlying action for personal injuries arising from an automobile accident, alleging the negligence of Defendant. Defendant now moves to dismiss the complaint for neglect to prosecute pursuant to CPLR 3216.
The underlying negligence action was commenced by service of a summons and verified complaint in October, 1990. Issue was then joined by service of a verified answer with counterclaim on October 26, 1990. Issue was joined on Defendant's counterclaim by service of a verified reply on November 19, 1990, and an amended answer was served on December 23, 1992. Following completion of disclosure, Plaintiff filed trial note of issue in April, 1993. A pre-trial conference was held on September 29, 1993, and a day certain for trial was scheduled for February 28, 1994.
On October 29, 1993, Defendant requested that Plaintiffs provide responses to his previous demand for expert information and further provided potential dates for deposing Plaintiffs' expert. On December 6, 1993, having received no response to his prior request, Defendant again requested this information from Plaintiffs. Subsequently, Plaintiffs informed the Court that their treating physician would be unavailable to testify and a new day certain was scheduled for June 27, 1994. On February 10, 1994, Defendant's attorneys again requested that Plaintiffs supply him with the requested expert disclosure. This information was then provided by Plaintiffs on June 3, 1994, which defense counsel rejected as untimely.
On June 14, 1994, Plaintiffs' counsel informed the Court of his impending surgery. The Court struck the trial note of issue and granted Plaintiffs leave to refile within one year. On November 16, 1994, defense counsel requested that Plaintiffs inform him of their intentions regarding returning the case to the calendar for trial. At that time, defense counsel specifically noted that Sheldon Hansel had recently been convicted on his plea to filing fraudulent documents with the government in order to receive overpayment of federal funds. Having received no answer, defense counsel again wrote to Plaintiffs' attorney to request the status of this case in January of 1995 and again in February of this year. On March 9, 1995, defense counsel sent Plaintiffs a demand to resume prosecution pursuant to CPLR 3216 by certified mail, which was received by Plaintiffs' counsel the following day.
On April 6, 1995, Plaintiff Sheldon Hansel was sentenced to 16 months' incarceration by the United States District Court, Northern District of New York. He was actually imprisoned on May 8, 1995, and is currently serving his term of imprisonment at a federal prison in Lexington, Kentucky.
Subsequently, Plaintiffs filed trial note of issue on June 14, 1995, exactly one year to the date from which the Court struck the note of issue and removed the case from the calendar.
Defendant now moves the Court for dismissal of the Plaintiffs' complaint pursuant to CPLR 3216 due to failure to prosecute. In particular, Defendant contends that Plaintiffs have failed to file and serve a trial note of issue within the ninety days following receipt of the demand and that this delay severely prejudices his defense of the action and prosecution of his counterclaims. In opposition, Plaintiffs contend that the action has not been abandoned, as they have filed the note of issue within the one-year period permitted by CPLR 3404.
Thus, three questions are posed to the Court:
1. As between the seemingly conflicting time limits of CPLR 3216 and 3404, which is controlling?
2. Have the Plaintiffs complied with the requirements of the relevant statute?
3. If the Plaintiffs have failed to comply with the requirements of the relevant statute, have they proffered reasons for their delay?
Rule 3404 merely authorizes a presumption of abandonment and an automatic dismissal following one year without activity. However, CPLR 3404 does not expressly permit the recalcitrant plaintiff an entire year in which to restore the case to the calendar. To interpret the statute in this manner would permit such party to continue to delay and then only return the case to the calendar on the very last day of that one-year period, to the potential prejudice of the defendant. By striking the case from the calendar with leave to re-file, the Court did not thereby preclude the Defendant from demanding that the Plaintiffs resume prosecution before the last day of the one-year period, particularly given the inordinate delays already caused solely by the actions of the Plaintiffs. Although CPLR 3216(f) states, "the provisions of this rule shall not apply to proceedings within rule thirty-four hundred four", this clause indicates that CPLR 3216 acts independently of CPLR 3404. Although Rule 3216 requires a formal motion, CPLR 3404 is self-executing and requires no active court application. Siegel, Practice Commentaries, McKinney's Consol.Laws of N.Y., Book 7B, C3216:32, at 659 (1992).
Plaintiff was served with the Demand to Resume Prosecution on March 10, 1995. Ninety days from that date is June 8, 1995. Trial Note of Issue was mailed on June 13, 1995, and filed on June 14, 1995. Therefore, although within the parameters of CPLR 3404, Plaintiffs failed to comply with CPLR 3216 due to their failure to timely file and serve the note of issue within ninety days after receipt of the Demand.
In order to take advantage of this safeguard and avoid having their action dismissed, the Plaintiffs must therefore satisfy two criteria: present a legitimate excuse for their delay, and demonstrate that the underlying action has legal merit. DeLisa v. Pettinato 189 A.D.2d 988, 989, 592 N.Y.S.2d 843 (3rd Dep't 1993). Brady v. Mastrianni, Abbuhl, & Murphy, M.D.'s, P.C., 187 A.D.2d 858, 859, 589 N.Y.S.2d 691 (3rd Dep't 1992). Tierney v. OB-GYN Associates of Ithaca, 186 A.D.2d 926, 927, 588 N.Y.S.2d 950 (3rd Dep't 1992).
The courts have recognized that legitimate reasons exist for delay which may warrant a denial of a CPLR 3216 motion....
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Jerideau v. Huntington Union Free Sch. Dist.
...have proffered no a/uthority for the dismissal of plaintiffs complaint under these circumstances. See, Hansel v. Lamb, 166 Misc. 2d 593, 634 N.Y.S.2d 954 (Sup. Ct. 1995) (dismissal of the complaint would deprive incarceratedplaintiff of his constitutional right to his day in court); Castro ......
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Gadsden v. New York City Transit Authority
...this action was properly excused since he was incarcerated in a state prison shortly after issue was joined (see Hansel v Lamb, 166 Misc 2d 593, 597 [1995], affd 227 AD2d 838 [1996]; Castro v Banister, 42 Misc 2d 387 [1964], affd 22 AD2d 854 [1964]). Furthermore, the facts negated any infer......