Persaud v. Goriah

• Decision Date: 27 March 1989
• Citation: 143 Misc.2d 225,539 N.Y.S.2d 872
• Parties: Shiw PERSAUD and Lila Persaud, Plaintiffs, v. Bibi H. GORIAH and Carlton Goriah, Defendants.
• Court: New York Supreme Court

Page 872

539 N.Y.S.2d 872

143 Misc.2d 225

Shiw PERSAUD and Lila Persaud, Plaintiffs, v. Bibi H. GORIAH and Carlton Goriah, Defendants.

Supreme Court, Bronx County Part IA 5.

March 27, 1989.

Harold Gordon, of counsel, Kahn & Gordon, P.C., New York City, for plaintiffs.

Jeff S. Korek, of counsel, Leahey & Johnson, P.C., New York City, for defendants.

LEWIS R. FRIEDMAN, Justice.

Bibi Goriah, the only defendant served, moves to dismiss on the grounds of forum non conveniens. Her prior motion on the same grounds was granted, but, pursuant to 22 NYCRR 202.48[b], was "deemed abandoned" when defendant failed to settle an order (Persaud v Goriah, NYLJ Dec 23, 1988, p. 24, col. 4). This motion concerns the consequences that flow from that "abandonment."

The case arises out of a May 16, 1987 automobile accident which occurred in Mississauga, Ontario, Canada. The action was commenced in June 1987 by service of the summons and complaint on Bibi Goriah in New York City. Defendant served an untimely answer in September 1987; it was rejected. In November 1987 defendant moved (1) for leave to serve the answer, (2) to dismiss on the grounds of forum non conveniens (CPLR 327[a] ), and (3) to dismiss for improper service. Justice Tompkins granted dismissal on the grounds of forum non conveniens, in a decision filed December 18, 1987; the decision concluded "settle order." Although 22 NYCRR 202.48[a], [b] requires submission of an order for signature within 60 days of the date of decision, no order was submitted. Plaintiffs attempted to appeal from the decision, but the papers were rejected by the Appellate Division. Eventually, plaintiffs moved for an order deeming the prior decision abandoned; defendants cross moved for leave to settle an untimely order. On November 25, 1988, this court found that, in the absence of good cause, the 11 month delay between the decision and the submission of the order, constituted "an abandonment of the motion" (Persaud v Goriah, supra).

Defendant's present motion is a repetition of the prior motion to dismiss. Defendant argues that she may simply move again for the same relief she had already received; plaintiffs counter that the "abandonment" precludes this motion.

The cases provide no guidance. Although the substance of 22 NYCRR 202.48 existed long prior to the current Uniform Civil Rules for the Supreme Court and the County Court (see, e.g., former Rules of Practice, Supreme Court, Westchester County, 22 NYCRR 780.26 [1973] ), no reported decisions concerning motions which have been "deemed abandoned" have dealt with the consequences of "abandonment."

Analytically, there are three alternative resolutions of the issue. First, as plaintiffs here allege, "the ballgame is over" as far as the substance of the original motion is concerned. That is, once a motion is made and abandoned, the moving party is effectively in the same position as though the motion had been denied. At first blush, that appears to be the result reached in Hickson v. Gardner, 134 A.D.2d 930, 521 N.Y.S.2d 938 and Marine Midland Bank v. Bullard, 139 Misc.2d 1009, 528 N.Y.S.2d 965. In Hickson, after a favorable jury verdict, the plaintiff failed to enter judgment, despite defendants' requests; the judgment was only submitted for signature in response to the motion to dismiss, 10 months after the verdict. The Appellate Division reversed the trial court's refusal to dismiss the action. "The intent of the rule appears to be to bring repose to court proceedings where no further action is otherwise contemplated" (134 A.D.2d at 931, 521 N.Y.S.2d 938). Similarly, in Marine Midland Bank v Bullard, supra, the court dismissed the action against a defendant even though summary judgment had previously been granted to plaintiff, when the plaintiff failed to enter judgment. However, neither case discussed whether the plaintiff could commence a new action or the implications of the statute of limitations. If 22 NYCRR 202.48 is a permanent bar to relitigation, appellate review of the substance of the motion is precluded, without any adjudication of its merits; abandonment becomes the equivalent of a determination with prejudice. That may well be a proper penalty for recalcitrant litigants. The courts apparently have the power to adopt such a rule (see, Headley v. Noto, supra, 22 N.Y.2d at 1, 4; Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 251, 303 N.Y.S.2d 633, 250 N.E.2d 690; Matter of A.G. Ship Maintenance Co. v. Lezak, 69 N.Y.2d 1, 6, 511 N.Y.S.2d 216, 503 N.E.2d 681). Yet, this court is loath to apply such a drastic remedy to the failure to settle an order; the consequences may go far beyond the inconvenience to the previously unsuccessful party and the burdens on the court system which are the reasons for the "deemed abandoned" rule. Indeed, a motion for summary judgment which is granted, and then "deemed abandoned", may well require an unwarranted trial.

Second, as the defendant here advocates, there should be no adverse consequences from the "abandonment" of the motion. Defendant, in essence, argues that more than 18 months of litigation, her own inept handling of the case, and the imposition on the court and plaintiffs should all be ignored. She would proceed as though nothing had happened. Obviously, the purpose of 22 NYCRR 202.48, to bring timely repose to litigation, is not well served by that approach. Clearly, the opposing party is unfairly severely burdened. In the instant case, plaintiff opposed the first motion to dismiss, brought the "abandonment" motion, and now must respond to the motion to dismiss, on the merits, yet again. "Legalizing such antics worsens the calendar delay situation" (Greenberg v. De Hart, 4 N.Y.2d 511, 517, 176 N.Y.S.2d 344, 151 N.E.2d 891 (Desmond, J., dissenting). Indeed, if defendant were correct, there would be no incentive for an aggrieved party to move under the 22 NYCRR 202.48. All the abandoning party would need do, is respond to the motion for abandonment by submitting an untimely order. The court's acceptance of that order would yield a far more "efficient" result than, as here, the motion practice resulting from relitigation of the original motion. The Fourth Department in Hickson v Gardner, supra, properly rejected that approach. This court is not willing to conclude that 22 NYCRR 202.48, and the identical rules applicable to other trial courts (22 NYCRR 208.33 [NYC Civil Court], 210.33 [City Courts], 212.33 [District Courts] ), were adopted to produce meaningless results.

A third result may flow from the "abandonment"--the court may consider the original motion on the merits but treat it as though it were being interposed for the first time. That is, the moving party, whose inaction delayed disposition of the motio should bear the burden, costs and consequences of the delay in the motion practice. For example, despite the merits of the motion, laches or waiver may bar a favorable substantive adjudication.

That result is consistent with the rules applicable to actions which the CPLR treats as "abandoned". In each of those instances, a new action may be recommenced unless the statute of limitations has run; however, the tolling provision of CPLR 205[a] does not apply. Under CPLR 3404 a case marked "off" the calendar that is not restored within one year "shall be deemed abandoned and shall be dismissed". That dismissal is not on the merits and, subject to the statute of limitations, a new action may be commenced (Lewin v. Yedvarb, 61 A.D.2d 1025, 1026, 403 N.Y.S.2d 90; Freeman's Beverages, Inc. v. National Cash Register Co., 50 A.D.2d 1075, 376 N.Y.S.2d 58; Pisaturo v. McCloud, 26 A.D.2d 610, 271 N.Y.S.2d 94; 3A Weinstein-Korn-Miller, N.Y.Civ.Prac., 3404.09; cf. Bieniek v. Miller Drug Stores, 25 A.D.2d 941, 270 N.Y.S.2d 491). Similarly, if a party fails to take steps to enter a judgement within one year of a default, "the court shall not enter judgment but shall dismiss the complaint as abandoned * * *." The resulting dismissal is for failure to prosecute (see 13 NY Jud Council Rep 213, 226-227) and is not on the merits; therefore, a new action, if it is not time barred, may be brought (see e.g., Goodemote v. McClain, 40 A.D.2d 22, 337 N.Y.S.2d 79). Also, when an action which is dismissed pursuant to CPLR 3216 for "want of prosecution" because the plaintiff failed to place the matter on the trial calendar, the dismissal is generally not on the merits and the action may be recommenced unless it is barred by the relevant statute of limitations (see, e.g., Shepard v. St. Agnes Hospital, 86 A.D.2d 628, 630, 446 N.Y.S.2d 350; Lewin v. Yedvarb, supra, 61 A.D.2d at 1026, 403 N.Y.S.2d 90; Medical Health Services v. Fountain Center Corp., 52 A.D.2d 621, 382 N.Y.S.2d 350; Mintzer v. Carl M. Loeb, Rhoades & Co., 10 A.D.2d 27, 31, 197 N.Y.S.2d 54). However, CPLR 3216 permits the court to dismiss the action "on the merits" in the exercise of discretion for prolonged neglect (Jones v. Maphey, 50 N.Y.2d 971, 431 N.Y.S.2d 466, 409 N.E.2d 939; Headley v. Noto, 22 N.Y.2d 1, 4, 290 N.Y.S.2d 726, 237 N.E.2d 871). Clearly, a disposition "on the merits" was not intended by the "deemed abandoned" rule, 22 NYCRR 202.48.

This court finds that the third alternative produces the only result properly consistent with the policy of 22 NYCRR 202.48. The effect of delay, laches or waiver by inaction are the equivalent of the statute of limitations applicable to dismissed actions. Thus, the court may reach the merits of those motions where the merits are not effected by the delay; yet the movant who has delayed does not reap any benefit from that delay. The proper application of the rule puts burdensome motion practice to an end. However, those motions which are truly outcome determinative and which impact on sound judicial administration may, in the exercise of the court's discretion, be considered on their merits. The application of the rule to the case at bar leads the court to conclude that defendant...