Kasiuba v. New York Times Co.

• Decision Date: 10 October 1966
• Citation: Kasiuba v. New York Times Co., 273 N.Y.S.2d 705, 51 Misc.2d 700 (N.Y. Sup. Ct. 1966)
• Parties: Lucia KASIUBA, Plaintiff, v. NEW YORK TIMES COMPANY, Defendant.
• Court: New York Supreme Court

Page 705

273 N.Y.S.2d 705

51 Misc.2d 700

Lucia KASIUBA, Plaintiff, v.NEW YORK TIMES COMPANY, Defendant.

Supreme Court, Special Term, Kings County, Part I.

Oct. 10, 1966.

[51 Misc.2d 701] Irwin S. Kosover, Brooklyn, for plaintiff.

Lord, Day & Lord, New York City, for defendant.

MEMORANDUM

MURRAY T. FEIDEN, Justice.

The defendant moves to dismiss this libel action pursuant to the first paragraph of CPLR 3216 because of plaintiff's general delay in prosecuting the action.The application is made almost 8 months after plaintiff filed her note of issue.

The defendant stresses that four years and four months elapsed between the time that pre-trial disclosure proceedings were completed and the time plaintiff served a note of issue and that the filing of the note of issue does not cancel out the delay.It is urged that the case of Commercial Credit Corp. v. Lafayette Lincoln-Mercury, 17 N.Y.2d 367, 271 N.Y.S.2d 212, 218 N.E.2d 272, is dispositive of the instant application.While it is true that in that case and the instant one the periods of delay are similar and the motion to dismiss was made after the note of issue was filed, there are other important distinguishing factual elements which will hereinafter be discussed.

The thrust of the Commercial Credit Corp. case is that the 1964amendment of CPLR 3216, which added a second paragraph requiring a 45-day notice, did not eliminate the first paragraph of the rule and that the amendment left intact the inherent power of this court to dismiss for general delay irrespective of the filing of the 45-day notice referred to in the second paragraph.That case does not represent an unconditional mandate to dismiss a case where there has been inordinate delay.There are other factors to be considered.Some of these factors are the degree of merit in plaintiff's case, a demonstration of prejudice to defendant resulting from the alleged inordinate delay, the excuse for the delay, the running of the statute of limitations if the motion is granted, the existence of facts showing an intent to abandon the litigation, the defendant's contribution to or acquiescence in the delay and the defendant's delay in moving to dismiss (Brown v. Weissberg, 22 A.D.2d 282, 254 N.Y.S.2d 628;Mulinos v. Coliseum Constr. Corp., 22 A.D.2d 163, 254 N.Y.S.2d 282;Parshall v. Grand Leasing Corp., 17 A.D.2d 953, 233 N.Y.S.2d 777;Floyd v. United Hospital of Port Chester, 13 A.D.2d 788, 215 N.Y.S.2d 563;Car-Vel Realty Corp. v. Ginsburg, 8 A.D.2d 948, 190 N.Y.S.2d 447;Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392;Boyle v. Krebs & Shulz Motors, Inc., 18 A.D.2d 1010, 239 N.Y.S.2d 143;Rosenstein v. Rothenberg, 9 A.D.2d 663, 191 N.Y.S.2d 569;Richardson v. Erie R.R., 280 App.Div. 958, 117 N.Y.S.2d 443;Mladinich v. Livingston, 112 App.Div. 181, 98 N.Y.S. 46;Davis v. Lyndel Corp., Sup., 216 N.Y.S.2d 440, 442(N.O.R.), mod.16 A.D.2d 802, 228 N.Y.S.2d 451;Ostan v. 40 Realty Inc., 11 A.D.2d 710204 N.Y.S.2d 582;Barnard v. Postle, 12 A.D.2d 670, 207 N.Y.S.2d 778;Keller v. National Auto Renting Co., 10 A.D.2d 578, 196 N.Y.S.2d 607;Barnes v. Utility Lines, Inc., 12 A.D.2d 524, 207 N.Y.S.2d 735;Brill v. County of Westchester, 4 A.D.2d 690, 164 N.Y.S.2d 181;Levine v. City of New York, 3 A.D.2d 682, 159 N.Y.S.2d 265;DeVita v. Metropolitan Distributors, Inc., 45 Misc.2d 761, 257 N.Y.S.2d 618;Sortino v. Fisher, 20 A.D.2d 25, 32, 245 N.Y.S.2d 186, 195).See also, the decisions of this court in Carbonel v. Ocasio, 41 Misc.2d 33, 245 N.Y.S.2d 670, affd.19 A.D.2d 799, 243 N.Y.S.2d 421andFulrock RealtyCorp. v. N.Y.C.T.A., N.Y.L.J., Sept. 6, 1963, Sup.Ct., Kings Co. Spec. Term, Part I, p. 12, col. 7, wherein the criteria to be used in a motion to dismiss for lack of prosecution are fully discussed.There is nothing in the Commercial Credit Corp. case opinion which bars consideration of the factors taken into account in the foregoing cases.

If we examine the facts in the instant case in the light of the foregoing authorities, we find the following pertinent factual elements which distinguish it from the Commercial Credit Corp. case.The defendant here has not attempted to show any prejudice resulting to it because of plaintiff's delay, whereas the record on appeal in the Commercial Credit Corp. case discloses that the delay there resulted in substantial prejudice to the defendant in that the corporate defendant had long since discontinued its business; that its books and records had disappeared and their whereabouts abouts were unknown; and that essential witnesses for the defendant could no longer be located.

Another persuasive and distinguishing factual element present in the instant case is that the defendant itself has participated in and has been guilty of unexplained delay.Thus, it appears that the defendant here waited 2 months before it served its answer and waited another 15 months before it served a notice of examination before trial.Furthermore, although the filing of the note of issue is no bar to the instant motion to dismiss for general delay (Valentin v. Ina Holding Corp., 20 A.D.2d 525, 245 N.Y.S.2d 206), the court may take into consideration that the defendant did not make any timely motion to dismiss during plaintiff's period of inactivity and waited until eight months after the plaintiff filed her note of issue.SeeThompson v. Hook, 18 A.D.2d 710, 711, 236 N.Y.S.2d 235, 236;Mladinich v. Livingston, 112 App.Div. 181, 183, 184, 98 N.Y.S. 46, supra, where it was held that Special Term properly took into consideration defendant's failure to move prior to the time plaintiff filed his note of issue and on such consideration denied the motion.The court notes that in the Commercial Credit casethe defendant moved to dismiss three days after the plaintiff filed its note of issue.

The court is familiar with the line of cases holding that the duty of prosecuting an action rests on the one who prosecutes it (Sortino v. Fisher, 20 A.D.2d 25, 30, 245 N.Y.S.2d 186, supra;Hutnik v. Brodsky17 A.D.2d 808, 190 N.Y.S.2d 640;Balaka v. Stork Rest., Inc., 3 A.D.2d 857, 161 N.Y.S.2d 735), but even the oft cited Sortino case (20 A.D.2d at p. 30, 245 N.Y.S.2d at p. 193) recognizes the fact that 'There may, of course, be exceptions' and, at p. 31, 245 N.Y.S.2d at p. 194, states that '* * * delays in which defendants are directly involved or contributory may excuse delay (e.g., Rosenstein v. Rothenberg, 9 A.D.2d 663, 191 N.Y.S.2d 569;Barnard v. Postle, 12 A.D.2d 670, 207 N.Y.S.2d 778) * * *.'In the instant casethe defendant itself participated in and contributed to the delay in its leisurely pace in serving its answer, examining plaintiff before trial and moving to dismiss.

Although as between parties to an action the duty to prosecute lies primarily with the plaintiff, nevertheless the defendant, if it owes no duty to the plaintiff, at least owes a duty to the court to press for dismissal of the action for inordinate delay.The court does not condone plaintiff's inactivity or defendant's tardiness in making its motion to dismiss.

A defendant who rests on its oars for an inordinate period of time before making a motion to dismiss is not entitled to an assist from the court in reaching its destination....