Kamensky v. Savage

• Decision Date: 08 February 2017
• Citation: 55 Misc.3d 20,49 N.Y.S.3d 609
• Parties: Lauren KAMENSKY, also known as Lauren Wilbert, Appellant–Respondent, v. Ian SAVAGE and Kelly DeMato, Respondents–Appellants.
• Court: New York Supreme Court — Appellate Term

55 Misc.3d 20
49 N.Y.S.3d 609

Lauren KAMENSKY, also known as Lauren Wilbert, Appellant–Respondent,
v.
Ian SAVAGE and Kelly DeMato, Respondents–Appellants.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Feb. 8, 2017.

49 N.Y.S.3d 609

Sinnreich Kosakoff & Messina LLP, Central Islip (Michael Stanton of counsel), for appellant-respondent.

Law Offices of Robert L. Dougherty, Garden City (Robert L. Dougherty of counsel), for respondents-appellants.

PRESENT: MARANO, P.J., IANNACCI and GARGUILO, JJ.

Appeal and cross appeal from an order of the District Court of Suffolk County, Sixth District (Linda J. Kevins, J.), dated March 24, 2015. The order, insofar as appealed from by plaintiff, denied plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the calendar. The order, insofar as cross-appealed from by defendants, denied as moot the branch of defendants' cross motion seeking to dismiss the complaint for failure to prosecute and denied the branch of defendants' cross motion seeking the imposition of sanctions and the payment of attorney's fees.

55 Misc.3d 21

ORDERED that the order is modified by vacating so much thereof as denied

49 N.Y.S.3d 610

plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the calendar, by providing that plaintiff's motion is granted, and by deleting the words "as moot" from the provision denying the branch of defendants' cross motion seeking to dismiss the complaint for failure to prosecute; as so modified, the order is affirmed, without costs.

In December 2008, plaintiff commenced this action to recover for damage to premises (described in the lease as a "1 bedroom house/garage" in Ronkonkoma) which she had rented to defendants. In January 2009, defendants, in their answer, generally denied the allegations of the complaint, asserted various affirmative defenses, and interposed several counterclaims. Plaintiff, in a February 2009 reply to the counterclaims, generally denied the allegations set forth therein. On March 23, 2010, Supervising Judge Madeleine A. Fitzgibbon issued a "Notice of CPLR 3216 Dismissal," which stated: "Please be advised that more than one year has elapsed since the joinder of issue in the above entitled action. Pursuant to CPLR 3216, you are required to serve and file a notice of trial within ninety days of receipt of this demand. Failure to timely comply with this demand will result in the dismissal of the action by the Court."

55 Misc.3d 22

Plaintiff's counsel sent the clerk of the court a letter dated June 16, 2010, advising the clerk that a motion for partial summary judgment was being prepared and requesting an extension of the deadline for filing the notice of trial in order to permit the motion to be decided. The motion was filed, and the clerk scheduled an August 5, 2010 return date, which the parties agreed to adjourn to August 19, 2010. By order dated September 8, 2010, the District Court (Stephen L. Ukeiley, J.) denied plaintiff's motion.

Thereafter, the parties took no action in the case until November 2014, when plaintiff's counsel attempted to file a notice of trial, which was rejected by the clerk because, unbeknownst to plaintiff's counsel, the case had been dismissed in December 2010. In January 2015, plaintiff moved to vacate the dismissal and to restore the matter to the calendar, contending that the apparently ministerial dismissal by the clerk's office, without notice to the parties, was...