Lopez v. Imperial Delivery Serv.
| Decision Date | 15 November 2000 |
| Citation | 282 AD2d 190,725 N.Y.S.2d 57 |
| Parties | (A.D. 2 Dept. 2001) Miguel Lopez, et al., appellants, v Imperial Delivery Service, Inc., et al., respondents. 1999-09550, 2000-05281, 2000-06637 : SECOND JUDICIAL DEPARTMENT Submitted - |
| Court | New York Supreme Court — Appellate Division |
Pulvers, Pulvers, Thompson & Kutner, LLP, New York, N.Y. (Marc R. Thompson of counsel), for appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Domingo R. Gallardo and Matthew P. Levy of counsel), for respondents.
DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
The issue presented in this case is whether CPLR 3404, which provides that a case marked "'off' or struck from the calendar *** and not restored within one year, shall be deemed abandoned and shall be dismissed", should be applied to cases where no note of issue has been filed, i.e., cases which have not yet reached the trial calendar. It has become an all too common practice in the trial courts to mark a case off during the discovery phase of litigation by deeming it to be on the court's "calendar" or by creating a special "purge" calendar for the purpose of marking the case off and then automatically dismissing it pursuant to CPLR 3404. For the reasons that follow, we hold that this practice is improper.
Resolution of the issue before us necessarily involves the interplay among three case management devices: CPLR 3404, CPLR 3216, and Uniform Rules for Trial Courts (22 NYCRR 202.27). Additionally, we must consider the intent underlying the creation of the Individual Assignment System.
On May 10, 1992, the injured plaintiff, Miguel Lopez, was involved in a motor vehicle accident with a vehicle owned by the defendant Imperial Delivery Service, Inc., and operated by the defendant "John Doe". Miguel Lopez and his wife, Gloria Lopez, commenced the instant action on March 9, 1993. Partial discovery was conducted but there was some delay due to the substitution of counsel for both sides. A conference was held on March 21, 1997. Counsel for the defendants appeared, but the plaintiffs' counsel did not. Consequently, the matter was marked "off the calendar".
On June 2, 1997, the parties entered into a stipulation wherein they agreed that the action "may be restored subject to renewed discovery demands and independent medical examination of the plaintiff". In addition, the stipulation provided that either party could seek to have the stipulation "so ordered". When the plaintiffs failed to restore the action to the calendar within one year after it had been marked off, it was deemed abandoned, and dismissed by the Clerk of the Supreme Court, Suffolk County, on July 6, 1998, pursuant to CPLR 3404.
Approximately eight months later, by notice of motion dated March 29, 1999, the plaintiffs moved to restore the action. The plaintiffs' counsel submitted an affirmation stating that the stipulation dated June 2, 1997, was a good faith effort to allow the defendants to conduct additional discovery and to allow the plaintiffs to restore the action after the defendants conducted this additional discovery. The defendants, however, never conducted the additional discovery, although the plaintiffs' counsel tried to ascertain the discovery that the defendants required.
In opposition, the defendants' counsel agreed that the purpose of the June 2, 1997, stipulation was to allow the plaintiffs to restore the action subject to the condition that the defendants were allowed to complete certain discovery. However, the defendants' counsel refused to consent to restoration of the action claiming that the plaintiffs failed to have the stipulation "so ordered".
In reply, the plaintiffs' counsel submitted an affidavit stating that he did not appear at the March 21, 1997, conference because he was unaware of the conference, apparently because the plaintiffs' former counsel failed to inform him of the conference date.
By order dated September 2, 1999, the Supreme Court, Suffolk County, denied the plaintiffs' motion concluding that they had failed to meet their burden on a motion to restore after dismissal pursuant to CPLR 3404, of demonstrating a reasonable excuse, a meritorious cause of action, and lack of prejudice to the defendants. A judgment dismissing the action was entered September 28, 1999.
On or about October 13, 1999, the plaintiffs moved, in effect, for reargument. The defendants submitted opposition. After the return date of the motion, by letter dated November 22, 1999, the plaintiffs advised the Supreme Court of a then-recent decision of this court, Cubed Enters. v Roach (265 A.D.2d 537). The plaintiffs argued that our decision in Cubed stood for the proposition that a case could not be dismissed pursuant to CPLR 3404 where no note of issue had been filed. Accordingly, since a note of issue was not filed in the instant case, the dismissal of the action was improper. By order dated February 15, 2000, the Supreme Court, in effect, granted reargument and adhered to its prior determination.
The Supreme Court recognized that the decision in Cubed Enters. v Roach (supra), was contrary to its determination but concluded that our decision was "misguided". The court noted that nothing in CPLR 3404 requires that the case be on the trial calendar and that 22 NYCRR 202.27 (hereinafter section 202.27) allows a court to dismiss a complaint based upon the failure to appear at a scheduled conference. Further, the instant action was "marked off a purge calendar which was set up specifically to ferret out cases which were lingering in the courts without any action".
This section provides:
.
This rule was derived from Rules of Civil Practice, rule 302(2) (hereinafter Rule 302[2]). The original version of Rule 302(2) was essentially the same as the present CPLR 3404 except in Rule 302(2) there was a specific reference to cases marked off or struck from the "trial term" or "special term" calendar. When Rule 302(2) was adopted as CPLR 3404, the specific reference to the trial and special term calendars was changed to a generic reference to the "calendar". The purpose of this revision was apparently to make CPLR 3404 consistent with other calendar practice rules. The 1958 Second Preliminary Report of the Advisory Committee on Practice and Procedure, Title 36, indicates that the reason for the new calendar control rules was to address problems in trial calendar delay. Nowhere is there a reference to discovery, motion, or pretrial calendars (see, Second Preliminary Report of the Advisory Committee on Practice and Procedure, Title 36 [1958] [hereinafter Second Preliminary Report]; see also, Fourth Preliminary Report of the Advisory Committee on Practice and Procedure, Titles 31 and 36 [1960]). Indeed, the introduction and notes for proposed Rule 36.1 to the Second Preliminary Report repeatedly refers to the trial calendar when discussing the purpose of the new rules. These reports ultimately led to the legislation creating CPLR 3404 and authorizing the chief administrator of the courts to adopt rules for calendar control. Further proof of the legislative intent can be found by referring to the sections of the CPLR immediately preceding CPLR 3404. For example, CPLR 3402 relates to the procedure for filing a note of issue to place a case on the trial calendar and CPLR 3403 relates to special trial preferences.
CPLR 3216 requires three conditions precedent before a case can be dismissed for want of prosecution: (1) issue has been joined; (2) one year has elapsed from the joinder of issue; and (3) the court or a party has served a written demand that the plaintiff file a note of issue within 90 days.
CPLR 3216 is derived from Rules of Civil Practice, rule 181. That rule merely set forth the court's inherent discretionary authority to dismiss a case for neglect to prosecute. When trial courts began dismissing cases pursuant to CPLR 3216, in response to pressure from the plaintiffs' bar, the Legislature revised CPLR 3216 to limit a court's ability to dismiss for lack of prosecution (see, L 1964, ch 974; see also, L 1967, ch 770). The current language of CPLR 3216 requiring the service of a 90-day demand to file a note of issue is to give a plaintiff's attorney an opportunity to complete the discovery phase of the case before the drastic sanction of dismissal is imposed. Accordingly, CPLR 3216 is clearly intended to apply to cases which have not yet reached the trial calendar.
This rule currently provides:
"Defaults
At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows:
(a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest;
(b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims;
(c) If no party appears, the judge may make such order as appears just".
The January 1984 draft of section 202.27 provided:
"Calendar default; restoration; dismissal.
(a) Applicability. This section governs calendar defaults, restorations and dismissals, other than striking a case from the calendar pursuant to a motion under section 202.21 relating to the note of issue and certificate of...
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...3404 does not apply in this instance, as no note of issue was filed (see, Perez v Gerardi, A.D.2d 727 N.Y.S.2d 883; Lopez v Imperial Delivery Serv., A.D.2d 725 N.Y.S.2d 57). In any event, the operation of CPLR 3404 was stayed pending the resolution of a bankruptcy proceeding involving the d......
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