Menne v. Mount Sinai Beth Isr.

• Citation: 2021 NY Slip Op 32564 (U)
• Decision Date: 02 December 2021
• Docket Number: INDEX 805037/2016
• Parties: JERRY MORANT and GABRIELLE MENNE, Plaintiffs, v. MOUNT SINAI BETH ISRAEL, VLADIMIR B. SHUR, M.D., and OCEAN ORTHOPEDIC NEUROSURGERY, Defendants. MOTION SEQ. No. 004
• Court: New York Supreme Court

2021 NY Slip Op 32564(U)

JERRY MORANT and GABRIELLE MENNE, Plaintiffs, v. MOUNT SINAI BETH ISRAEL, VLADIMIR B. SHUR, M.D., and OCEAN ORTHOPEDIC NEUROSURGERY, Defendants.

MOTION SEQ. No. 004

INDEX No. 805037/2016

Supreme Court, New York County

December 2, 2021

Unpublished Opinion

MOTION DATE 08/16/2021

DECISION+ ORDER ON MOTION

PRESENT: HON. JOHN J. KELLEY JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 004) 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90 91 were read on this motion to/for DISMISSAL .

In this action to recover damages for medical malpractice, the defendants Mount Sinai Beth Israel and Vladimir B. Shur, M.D. (together the Mount Sinai defendants), together move pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them. The plaintiffs do not oppose the motion. The motion is granted, and the complaint is dismissed insofar as asserted against the Mount Sinai defendants.

The plaintiff commenced this action on January 25, 2016. Between September 26, 2017 and March 3, 2020, the court (Shulman, J.) issued nine case management orders. On May 3, 2020, the plaintiff's attorney died, and this action was automatically stayed by operation of CPLR 321(c). By order dated January 12, 2021, this court authorized the Mount Sinai defendants to serve a notice to appoint a new attorney upon the plaintiffs by FedEx delivery, and thereupon dissolve the stay in accordance with that statute. On January 27, 2021 the Mount Sinai defendants properly served the plaintiffs with both the January 12, 2021 order with notice of entry, and the notice to appoint a new attorney, the latter of which directed the plaintiffs to retain a new attorneys within 30 days or appear pro se.

After the plaintiffs failed to retain or appoint a new attorney to represent them, the Mount Sinai defendants, on March 26, 2021, served a notice upon the plaintiffs via FedEx demanding that they resume prosecution of the action and serve and file a note of issue within 90 days, and informing them that their failure to do so would serve as a basis for a motion to dismiss the complaint pursuant to CPLR 3216. Although the plaintiffs engaged in a search for a new attorney, and, on April 22, 2021, one attorney contacted counsel for the Mount Sinai defendants informing them that she was considering taking on the representation of the plaintiffs, the plaintiffs apparently did not retain that attorney, and the Mount Sinai defendants' counsel received no further communication from that attorney.

The applicable 90-day period set forth in CPLR 3216 for the resumption of prosecution of the action, plus one business day to account for the service of the motion papers by overnight delivery (see CPLR 2103[a][6]), expired on June 25, 2021. As of that date, the plaintiffs had neither resumed prosecution of the action nor filed the note of issue. On June 29, 2021, the Mount Sinai defendants made the instant motion to dismiss the complaint insofar as asserted against them.

CPLR 3216 provides, in relevant part, that:

"(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

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"(e) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action."

A party moving to dismiss a complaint for want of prosecution must establish that issue was joined in the action, and that "[o]ne year . . . elapsed since the joinder of issue or six months . . . elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later" (CPLR 3216[b][1], [2]). The movant must also show that it properly had served a written demand requiring the plaintiff both to resume prosecution of the action and to serve and file a note of issue within 90 day after receipt of such demand, and further stating that the plaintiff's default in complying with such demand within that 90-day period will serve as a basis for a motion for dismissal for the plaintiff's unreasonable neglect to proceed (CPLR 3216[b][3]).

On June 6, 2016, the Mount Sinai defendants joined issue. The court (Shulman, J.) issued a preliminary conference order on September 26, 2017. Hence, the Mount Sinai defendants were obligated to wait until March 26, 2018 to make the instant motion. Inasmuch as they made this motion on June 29, 2021, the motion is not premature.

Where as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3) in a timely and proper manner (see Secreto v International Business Mach. Co., 194 Misc.2d 512, 513-514 [Sup Ct, Dutchess County 2003 [Dillon, J.] [service of 90-day notice by FedEx is permissible]), that plaintiff must comply with the demand by filing a note of issue "or by moving, before the default date, either to vacate the demand or [pursuant to CPLR 2004] to extend the 90-day period" (Angamarca v 47-51 Bridge St. Prop., LLC, 167 A.D.3d 559, 559 [2d Dept 2018]; see Deutsche Bank Natl. Trust Co. v Inga, 156 A.D.3d 760, 760-761 [2d Dept 2017]). Where a plaintiff fails timely to make such as motion, he or she becomes obligated to establish, in opposition to the defendant's motion to dismiss, both a justifiable excuse for the failure timely to file the note of issue and a potentially meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 N.Y.2d 499, 503 [1997]; Grant v City of New York, 17 A.D.3d 215, 216-217 [1st Dept 2005] ["an application to extend plaintiff's time to file a note of issue within...