Monteferrante v. New York City Fire Dept.

Decision Date21 February 1980
Citation424 N.Y.S.2d 911,74 A.D.2d 538
PartiesHelen MONTEFERRANTE, Plaintiff-Respondent, v. NEW YORK CITY FIRE DEPARTMENT et al., Defendants, and The Uniformed Firefighters Association, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

R. A. Goldstein, New York City, for plaintiff-respondent.

E. Nunez, New York City, for defendant-appellant.

Before SULLIVAN, J. P., and LUPIANO, SILVERMAN and BLOOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 4, 1979, denying motion of defendant The Uniformed Firefighters Association to dismiss plaintiff's complaint against movant for failure to prosecute, is unanimously reversed, on the law and the facts, and in the exercise of discretion, and the motion is granted, and the complaint dismissed, without costs.

Plaintiff is the widow of a retired fireman who died on July 12, 1969. Her husband's retirement was effective as of July 1, 1969. Because he had not survived his retirement by 30 days, plaintiff, his widow, was not entitled to a pension. She brought this action in April 1971 against New York City Fire Department, New York City Fire Department Pension Fund and against appellant The Uniformed Firefighters Association ("UFA"). After a long period of inactivity, examinations before trial of plaintiff and of appellant were finally held on January 20, 1976.

In the meantime, on January 15, 1976, the other defendants, New York City Fire Department and New York City Fire Department Pension Fund had moved to dismiss the action against them. On July 7, 1976, summary judgment was granted dismissing the complaint as against those two defendants. That judgment was affirmed by this Court and the Court of Appeals, Monteferrante v. New York City Fire Department, 63 A.D.2d 576, 404 N.Y.S.2d 629, Aff'd 47 N.Y.2d 737, 417 N.Y.S.2d 253, 390 N.E.2d 1177.

On September 26, 1978, after the affirmance by this Court, the present appellant UFA served a 90 day notice pursuant to CPLR § 3216(b) 3 requiring plaintiff to serve and file a note of issue within 90 days, with notice that failure to comply with the demand would serve as basis for a motion by UFA to dismiss the action for unreasonably neglecting to proceed with the action. The 90 days expired on December 26, 1978. Instead of filing the note of issue, plaintiff on December 18, 1978 served a notice of motion for extension of the 90 days. This motion was made returnable on December 29, 1978, I. e., 3 days after the expiration of the 90 days. Special Term denied the motion by order entered January 15, 1979.

On January 23, 1979, appellant UFA moved to dismiss the action on the ground that plaintiff had unreasonably neglected to proceed. Eight days after that motion on January 31, 1979, and more than a month after the expiration of the 90 days, plaintiff served and filed a note of issue. Special Term thereupon denied the motion to dismiss. We reverse.

This action relates to events that were already almost ten years old at the time the motion was made; and the action had already been pending for almost eight years. Nothing had been done in this action so far as proceeding against UFA since the examinations in January 1976, three years before the motions. In the face of all that, plaintiff served with a 90 day notice, did not even bother to make a motion for extension returnable before the expiration of the 90 days, and did not serve a note of issue before the expiration of the 90 days.

Filing a note of issue after the making of a proper motion to dismiss is not an excuse for the delay charged in a motion to dismiss. Sortino v. Fisher, 20 A.D.2d 25, 30, 245 N.Y.S.2d 186, 193. Plaintiff says that the reason for the delay was the pendency of the appeal from the dismissal of the causes of actions against the City Fire Department and Fire Department Pension Fund. "(P)arallel litigation which should be...

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5 cases
  • Tierney v. OB-GYN Associates of Ithaca
    • United States
    • New York Supreme Court — Appellate Division
    • October 29, 1992
    ...actions until the present motion (see, Turman v. Amity OBG Assocs., 170 A.D.2d 668, 669, 567 N.Y.S.2d 87; Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 424 N.Y.S.2d 911, aff'd, 53 N.Y.2d 653, 438 N.Y.S.2d 998, 421 N.E.2d 118). Under the circumstances, Supreme Court did not abuse......
  • Aquilino v. Adirondack Transit Lines, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • November 23, 1983
    ...of plaintiff's failure to sufficiently demonstrate the existence of a meritorious cause of action. In Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 539, 424 N.Y.S.2d 911, citing Sortino v. Fisher, 20 A.D.2d 25, 32, 245 N.Y.S.2d 186, the court held, "The more slender the excuse f......
  • Allstate Ins. Co. v. Seibert
    • United States
    • New York Supreme Court — Appellate Division
    • March 19, 1984
    ...exercise of discretion to deny defendants' requests to dismiss the complaint as to them (see CPLR 3216; Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 424 N.Y.S.2d 911, affd. 53 N.Y.2d 653, 438 N.Y.S.2d 998, 421 N.E.2d 118; Abrams, Kochman, Rathskeller v. Esquire Motels, 79 A.D.2......
  • Monteferrante v. New York City Fire Dept.
    • United States
    • New York Court of Appeals Court of Appeals
    • March 26, 1981
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