Moran v. Rynar

• Decision Date: 01 May 1972
• Citation: 39 A.D.2d 718,332 N.Y.S.2d 138
• Parties: Thomas MORAN, Respondent, v. Richard RYNAR, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 138

332 N.Y.S.2d 138

39 A.D.2d 718

Thomas MORAN, Respondent, v. Richard RYNAR, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

May 1, 1972.

Before RABIN, P.J., and MARTUSCELLO, LATHAM, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant Rynar appeals from an order of the Supreme Court, Kings County, dated August 23, 1971, which (1) granted plaintiff's motion to reargue a prior motion by said defendant to dismiss the complaint because of plaintiff's failure to serve and file a note of issue and (2) thereupon granted said motion to dismiss the complaint unless plaintiff would file a note of issue within five days after service of said order with notice of entry.

Order modified, by adding thereto a provision imposing $250 costs on plaintiff's attorney, personally, payable to appellant; as so modified, order affirmed, without costs.

Plaintiff, a passenger on defendant Rynar's motorcycle, was seriously injured when the motorcycle ran into the rear of defendants Llinas' truck. The action was started on February 4, 1969. On January 30, 1970, pretrial examinations of plaintiff and Rynar were had and at that time there were settlement discussions between counsel. The transcripts of the examinations were completed in early March, 1970. On June 1, 1970 plaintiff's attorney joined a Bronx law firm and during the next few months he was engaged in moving his files from his former Manhattan office to his new office in the Bronx. On June 22, 1970 (about 15 months after joinder of issue and 3 1/2 months after transcription of the pretrial examinations and while plaintiff's attorney was still in the process of moving his office to the Bronx), Rynar served a 45-day notice demanding that plaintiff file a note of issue. Plaintiff's attorney states that this notice never came to his personal attention because of the upset conditions in his office and that for that reason he failed to file a note of issue within the 45-day period.

On August 17, 1970 (11 days after expiration of the 45-day period), Rynar moved to dismiss the complaint for lack of prosecution. The motion was adjourned from time to time until February, 1971; while it was pending, plaintiff's attorney contacted Rynar's attorney several times concerning a possible settlement of the case, but the discussions proved fruitless.

On this record, and after reargument, Special Term granted the motion to dismiss unless plaintiff would file a note of issue within five days after service of the order thereon with notice of entry. Rynar urges that the dismissal should have been unconditional and that plaintiff should not have given an opportunity to save the action from dismissal by then filing a note of issue. We disagree and see no abuse of discretion by Special Term in that regard.

A proper exercise of discretion in cases like this requires a balanced consideration of all relevant factors, including the merit or lack of merit in the action, seriousness of the injury, extent of the delay, excuse for the delay, prejudice or lack of prejudice to the defendant, and intent or lack of intent to deliberately default or abandon the action. Also to be weighed in the balance is our strong public policy that actions be disposed of on the merits (see, e.g. Dahlem v. Universal School Bus Leasing, 35 A.D.2d 992, 993, 318 N.Y.S.2d 117, 119).

Here, the action apparently has merit; the injury is serious; the delay was not protracted; the default was not wilful or with intent to abandon the action, but rather the result of inadvertence and neglect on the part of plaintiff's attorney; there is neither claim nor showing of prejudice to defendant Rynar from the delay; and the Statute of Limitations has now run, so that a dismissal would effectively deprive plaintiff of his cause of action.

In such cases, we have held that an attorney's neglect or inadvertent error should not deprive his client of his day in court; and that it is proper to save the action for the client, while imposing upon the attorney, personally, a penalty for his neglect (see, e.g., Springer v. Marangio, 38 A.D.2d 852, 330 N.Y.S.2d 100 (2d Dept., dec. Feb. 22, 1972); Douglaston Estates v. Consolidated Edison Co., 39 A.D.2d 705, 332 N.Y.S.2d 403 (2d Dept., dec. herewith); cf. Dahlem v. Universal School Bus Leasing, 35 A.D.2d 992, 318 N.Y.S.2d 117, Supra). In accord with those determinations are statements in 4 Weinstein-Korn-Miller (par. 3216.04, pp. 32--201) and Practice Commentaries by Professor David D. Siegel on CPLR 3216 (McKinney's Cons.Laws of N.Y., Book 7B, vol. for CPLR 3201--3400, pp. 918--919). Thus, weinstein-Korn-Miller says this:

'It must be borne in...