Marrero v. Nails

• Citation: 978 N.Y.S.2d 257,114 A.D.3d 101,2013 N.Y. Slip Op. 08599
• Parties: Digna MARRERO, et al., appellants, v. CRYSTAL NAILS, also known as Nail Art, et al., respondents.
• Decision Date: 26 December 2013
• Court: New York Supreme Court Appellate Division

114 A.D.3d 101
978 N.Y.S.2d 257
2013 N.Y. Slip Op. 08599

Digna MARRERO, et al., appellants,
v.
CRYSTAL NAILS, also known as Nail Art, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 26, 2013.

[978 N.Y.S.2d 258]

Jonathan R. Vitarelli, New York, N.Y. (Stephen D. Chakwin, Jr., of counsel), for appellants.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (William K. Kerrigan of counsel), for respondents Crystal Nails, also known as Nail Art, and Anna Limb.

Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for respondents Anthony R. Spencer and Spencer Construction Corp.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

DICKERSON, J.
Introduction

CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations. In 2008, the Legislature amended CPLR 205(a) to add a requirement that “[w]here a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 205[a], as amended by L.2008, ch. 156, § 1).

On this appeal, we must determine whether a prior action commenced by the plaintiffs was indeed dismissed for neglect to prosecute, a category of dismissal that precludes recommencement in accordance with the saving provision of CPLR 205(a), and, if so, whether retroactive effect must be given to the 2008 amendment requiring that the record specify the conduct constituting the neglect and that the conduct involved a general pattern of delay in order to fall within that exception to the saving provision of CPLR 205(a).

For the reasons which follow, we conclude that the prior action commenced by the plaintiffs was dismissed for failure to prosecute. We further conclude that the 2008 amendment to CPLR 205(a) is not to be applied retroactively and, thus, the plaintiffs may not avail themselves of the saving provision of CPLR 205(a) regardless of whether the Supreme Court set forth in the record the specific conduct constituting the plaintiffs' neglect to prosecute or evidence that the plaintiffs were engaged in a general pattern of delay. Accordingly, the Supreme Court properly granted the separate motions of the defendants Crystal Nails, also known as Nail Art, and Anna Limb (hereinafter together the Crystal Nails defendants) and the defendants Anthony R. Spencer and Spencer Construction Corp. (hereinafter together

[978 N.Y.S.2d 259]

the Spencer defendants) pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them as time-barred, and properly denied, as academic, the plaintiffs' cross motion pursuant to CPLR 306–b to extend the time to serve copies of the summons and complaint.

Factual and Procedural Background

On February 7, 2003, the plaintiff Digna Marrero allegedly fell on an icy patch outside of a business operated by the Crystal Nails defendants, which was located in a building owned and maintained by the Spencer defendants. In March 2005, the plaintiffs commenced an action (hereinafter the prior action) against the defendants based on the incident. Digna Marrero asserted a cause of action to recover damages for negligence and her husband, Edward Marrero, asserted a derivative cause of action to recover damages for loss of services.

In a preliminary conference order dated April 26, 2007, the Supreme Court set forth a schedule for the parties to exchange discovery and other documents. As relevant to this appeal, the court directed the plaintiffs to provide bills of particulars and witness identification information, photographs, and party statements no later than May 25, 2007. In a compliance conference scheduling order dated May 16, 2007, the Supreme Court scheduled a conference for September 11, 2007, at which the parties were to appear and report on “the progress of discovery” so that “[s]ettlement possibilities” could “be explored” and the deadline for filing the Note of Issue” could “be set.” The plaintiffs failed to appear at the conference scheduled for September 11, 2007. In an order entered October 30, 2007, the Supreme Court denied, as academic, the defendants' separate motions to preclude the plaintiffs from adducing any evidence at trial, explaining that “[o]n September 11, 2007, defense counsel appeared for a conference. Neither plaintiffs nor their counsel appeared. At the conference, the court directed counsel to settle orders of dismissal based on plaintiffs' failure to appear and failure to furnish a bill of particulars and discovery.”

The parties agree that, on November 14, 2007, the Supreme Court dismissed the prior action. Almost one year later, the plaintiffs moved to vacate the dismissal and restore the prior action to the pre-note-of-issue calendar. In an order entered June 30, 2009, the Supreme Court denied that motion. The plaintiffs thereafter moved for leave to renew and reargue their motion to vacate the dismissal and restore the prior action to the pre-note-of-issue calendar. In an order entered December 24, 2009, the Supreme Court, inter alia, in effect, denied that branch of the plaintiffs' motion which was for leave to renew.

The plaintiffs appealed from the order entered June 30, 2009, denying their motion to vacate the dismissal and restore the prior action to the pre-note-of-issue calendar, and from so much of the order entered December 24, 2009, as, in effect, denied that branch of their motion which was for leave to renew. In a decision and order dated October 19, 2010, this Court affirmed the order entered June 30, 2009, and affirmed the order entered December 24, 2009, insofar as appealed from ( see Marrero v. Crystal Nails, 77 A.D.3d 798, 909 N.Y.S.2d 136). With respect to the appeal from the order denying the plaintiffs' motion to vacate and restore, we concluded that “[n]ot only does the record reveal an overall lack of diligence by the plaintiffs in prosecuting their claims and in responding to discovery demands, but also a failure to demonstrate a reasonable excuse for the lengthy delay in bringing the motion to vacate” the dismissal (id. at 799, 909 N.Y.S.2d 136). Accordingly, this

[978 N.Y.S.2d 260]

Court concluded that the Supreme Court properly denied the plaintiffs' motion to vacate the dismissal and restore the prior action to the pre-note-of-issue calendar ( see id.). With respect to the appeal from so much of the order entered December 24, 2009, as, in effect, denied that branch of the plaintiffs' motion which was for leave to renew, this Court determined that the facts proffered by the plaintiffs in support of that branch of their motion were not sufficient to change the prior determination, and that the plaintiffs failed to demonstrate a reasonable justification for their failure to advance those facts, which were available to them, in support of the original motion ( see id.). Thus, this Court concluded that the Supreme Court properly, in effect, denied that branch of the plaintiffs' motion which was for leave to renew ( see id.).

Subsequently, the plaintiffs commenced the instant action by the filing of a summons and complaint dated April 8, 2011. Digna Marrero again asserted a cause of action to recover damages for negligence, and Edward Marrero again asserted a derivative cause of action to recover damages for loss of services. It is undisputed that this action is based on the same incident, and seeks damages under the same theories, as the prior action.

The Spencer defendants thereafter moved pursuant to CPLR 3211(a)(5) to dismiss the complaint in the instant action insofar as asserted against them on two grounds. First, the Spencer defendants contended that the plaintiffs' claims were barred by the doctrine of res judicata because the prior action, which sought the same relief under the same theories as the instant action, was dismissed by the Supreme Court, and that determination was affirmed by this Court. Second, the Spencer defendants asserted that the plaintiffs' claims were now time-barred, as the summons and complaint in this action were filed more than eight years after the incident complained of, well beyond the three-year limitations period applicable to negligence causes of action ( seeCPLR 214 [5] ).

The Crystal Nails defendants separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint in the instant action insofar as asserted against them. The Crystal Nails defendants also asserted that this action was time-barred, as it was commenced more than three years after the date of the incident. Additionally, the Crystal Nails defendants contended that CPLR 205(a) did not apply to the instant action. Specifically, the Crystal Nails defendants argued that the saving provision of that section was inapplicable since the prior action had been dismissed for neglect to prosecute. In the alternative, the Crystal Nails defendants maintained that the plaintiffs failed to recommence the action within six months after the dismissal of the prior action, and failed to serve the defendants “within such six-month period,” as required by CPLR 205(a).

The plaintiffs opposed the defendants' separate motions, and cross-moved pursuant to CPLR 306–b to extend their time to serve copies of the summons and complaint upon the defendants. The plaintiffs first...