Perez v. New York City Housing Authority

• Decision Date: 07 April 1992
• Citation: Perez v. New York City Housing Authority, 582 N.Y.S.2d 150, 182 A.D.2d 416 (N.Y. App. Div. 1992)
• Court: New York Supreme Court — Appellate Division
• Parties: Angel PEREZ, Plaintiff-Respondent v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant

Page 150

582 N.Y.S.2d 150

182 A.D.2d 416

Angel PEREZ, Plaintiff-Respondent v.NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant

Supreme Court, Appellate Division First Department.

April 7, 1992.

Before SULLIVAN, J.P., and MILONAS, KUPFERMAN, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered on September 19, 1991, which granted defendant's motion to strike the complaint unless plaintiff supplies certain medical authorizations and appears for his deposition within 45 days of service of its order with notice of entry, is unanimously modified on the law to the extent that the motion to dismiss the complaint pursuant to CPLR 3404 is granted unconditionally, without costs or disbursements.

PlaintiffAngel Perez commenced this action for personal injuries allegedly sustained when he tripped and fell on the stairs of a project owned and operated by defendantNew York City Housing Authority(NYCHA).The summons and complaint were served on or about October 17, 1986, and issue was thereafter joined on or about January 6, 1987.Three years later, discovery still remained incomplete since, among other things, plaintiff had not yet appeared for deposition and important authorizations had not been exchanged.Nonetheless, plaintiff served a note of issue and certificate of readiness in January of 1990, claiming that all disclosure had been accomplished.Defendant moved to vacate the note of issue and strike the case from the trial calendar on the ground that pre-trial preliminary proceedings had not been completed.In an order entered on March 27, 1990, the Supreme Court granted the motion and struck the matter from the trial calendar; it also directed plaintiff to furnish certain authorizations, make himself available for examinations before trial and file a note of issue by December 20, 1990.However, plaintiff failed to comply with the court's order, and in June of 1991, NYCHA moved to dismiss the complaint pursuant to CPLR 3404, which provides that:

A case in the supreme court or a county court marked "off" or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.The clerk shall make an appropriate entry without the necessity of an order.

In opposition, plaintiff's counsel argued that "defendant ignores the fact that they[sic] too have failed to adhere to the directives of the Court inasmuch as they[sic] failed to appear for the Court Ordered deposition.The Order succinctly states that all parties were required to appear for depositions.The plaintiff stands ready to appear for depositions."He also asserted without elaboration that "[t]his action has merit inasmuch as the defendant failed to improperly [sic] maintain their [sic] premises and the plaintiff was injured as a result thereof.The Court has the discretion to allow the plaintiff to restore the action to the trial calendar even after the 'one year' has expired."The court subsequently issued an order striking the complaint unless plaintiff supplied the subject medical authorizations and appeared for his deposition within 45 days of service of its order with notice of entry.According to the court, CPLR 3404 merely "creates a rebuttable presumption that an action has been abandoned when it has not been restored to the calendar within one year of...