Hodge v. New York City Transit Authority
| Decision Date | 08 June 2000 |
| Citation | 273 A.D.2d 42,709 N.Y.S.2d 64 |
| Court | New York Supreme Court — Appellate Division |
| Parties | DESIREE HODGE, Appellant,<BR>v.<BR>NEW YORK CITY TRANSIT AUTHORITY et al., Respondents. |
Dismissal of this personal injury and medical malpractice action at the final court conference on October 1, 1998 was unsupported by any applicable legal authority and in disregard of settled law. True, the action was 17 years old, and was initially pursued in a dilatory manner, but not all of the delay was caused by plaintiff. In October 1997, plaintiff was prepared to proceed, and actually moved to place the action on the trial calendar, but voluntarily withdrew that motion to permit further discovery by defendant Transit Authority. Eleven months later, at the hearing when this action was dismissed, neither party cited any unfulfilled discovery demand.
It appears that at a court conference one week prior to the dismissal, defendants had offered $10,000 in settlement, and the case was adjourned to allow plaintiff to appear with a more senior counsel. Despite plaintiff's claim of having sustained severe, disabling and permanent injuries, the court presented plaintiff with the blunt choice of accepting $10,000 in complete settlement or suffering dismissal of the case on the ground that the lapse of time had placed defendants—as the court expressed it—"in a position where they would be severely prejudiced and put at great difficulty with regards to proof." When plaintiff rejected the proposed "settlement," the court granted defendants' oral motion in open court, and subsequently entered the order appealed from.
The record demonstrates that this dismissal rested upon the court's finding of general delay in prosecution. There was a time, before institution of this action, when such dismissal was an available remedy under the predecessor of CPLR 3216 (see, Sortino v Fisher, 20 AD2d 25). After several statutory amendments and judicial decisions critical of legislative interference with a court's "inherent power" to control its calendar, the conflict was laid to rest by Chief Judge Fuld in Cohn v Borchard Affiliations (25 NY2d 237, 246): ...
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