Lama v. Mohammad

• Decision Date: 01 October 2010
• Citation: 910 N.Y.S.2d 839,29 Misc. 3d 68
• Parties: Pama Wangyal LAMA, Appellant, v. Idris MOHAMMAD, Veronica Nesmith, Alexander Hollis and Chantel Elaine Mayo, Respondents.
• Court: New York Supreme Court — Appellate Term

910 N.Y.S.2d 839

29 Misc.3d 68

Pama Wangyal LAMA, Appellant,

v.Idris MOHAMMAD, Veronica Nesmith, Alexander Hollis and Chantel Elaine Mayo, Respondents.

Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts.

Oct. 1, 2010.

Moshe D. Fuld, P.C., New York City(Michael Reich of counsel), for appellant.

Law Office of James J. Toomey, New York City(Evy L. Kazansky of counsel), for Idris Mohammad, respondent.

James G. Bilello & Associates, Westbury (Tammy E. Skinner of counsel), for Veronica Nesmith, respondent.

Present: PESCE, P.J., GOLIA and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County(Kathryn E. Freed, J.), entered March 26, 2009.The order granted a motion by defendantsAlexander Hollis and Chantel Elaine Mayo, and cross motions by defendantsIdris Mohammad and Veronica Nesmith, to dismiss the complaint for want of prosecution, and denied plaintiff's request to, inter alia, restore the case to the calendar.

ORDERED that the order is modified by vacating so much of the order as granted the cross motions by defendantsIdris Mohammad and Veronica Nesmith to dismiss the complaint for want of prosecution, and by providing that said cross motions are denied; as so modified, the order is affirmed without costs.

This action seeking damages for serious injuries sustained in a motor vehicle accident was commenced in Supreme Court, Kings County, in July 2002.The case was transferred to the Civil Court pursuant to CPLR 325(d) in January 2006, and was marked off the trial calendar in April 2007.In November 2007, defendantsAlexander Hollis, Chantel Elaine Mayo and Veronica Nesmith served 90-day notices pursuant to CPLR 3216(b)(3).A notice of trial was served in February 2008.In August 2008, defendants Hollis and Mayo moved to dismiss the complaint for want of prosecution and defendants Nesmith and Mohammad each cross-moved for the same relief.Plaintiff Lama submitted opposition to the motions wherein he requested that the case be restored to the calendar and for leave to file a notice of trial.By order entered March 19, 2009, the Civil Court granted the motion and cross motions, and denied plaintiff's request.The instant appeal by plaintiff ensued.

In regard to the motion by defendants Hollis and Mayo, it is uncontroverted that plaintiff was served with a 90-day notice pursuant to CPLR 3216(b)(3) but failed to file a notice of trial within the 90-day period.Plaintiff did not move to vacate the 90-day notice or to extend this time period.In order to avoid dismissal, plaintiff was, thus, required to demonstrate both a justifiable excuse for the delay and a meritorious cause of action ( seeCPLR 3216[e];Louis v. MTA Long Is. Bus Co.,44 A.D.3d 628, 848 N.Y.S.2d 177[2007];Sharpe v. Osorio,21 A.D.3d 467, 800 N.Y.S.2d 213[2005] ), which he failed to do.

It is well settled that:

"there is an intimate relationship between themerit of an action and the fact that it has been neglected.It is for this reason that in defending a proper motion to dismiss for neglect it is essential that plaintiff supply an affidavit of merits.Such affidavit, by the party or another person with knowledge of the facts, must contain evidentiary facts establishing that plaintiff has a viable cause of action.It must be as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact"

( Sortino v. Fisher,20 A.D.2d 25, 31-32, 245 N.Y.S.2d 186[1963];see alsoYule v. Comerford,140 A.D.2d 981, 529 N.Y.S.2d 653[1988];Canter v. Mulnick,93 A.D.2d 751, 461 N.Y.S.2d 305[1983] ).The existence of a serious injury is a necessary element of plaintiff's cause of action and, therefore, plaintiff erroneously contends that he did not need to provide any medical evidence to show the existence of such an injury.The affidavit submitted by plaintiff contains no evidentiary facts establishingthat he has a viable cause of action and, clearly, it would have been insufficient to defeat a motion for summary judgment.Consequently, with respect to defendants Hollis and Mayo, since plaintiff failed to demonstrate both a meritorious cause of action and a justifiable excuse for the delay, so much of the order as granted said defendants' motion to dismiss is left undisturbed.

With respect to the cross motion by defendant Nesmith, it is uncontroverted that plaintiff had until February 15, 2008 to file a notice of trial.It is noted that the Civil Court's order, as well as defendants' motion papers, states, based on an...