Public Service Mut. Ins. Co. v. Zucker

• Citation: 225 A.D.2d 308,639 N.Y.S.2d 5
• Court: New York Supreme Court — Appellate Division
• Decision Date: 05 March 1996
• Parties: PUBLIC SERVICE MUTUAL INSURANCE CO., etc., Plaintiff-Respondent, v. Norma ZUCKER, etc., Defendant-Appellant, and The D.L. Dineen Sales & Service Corp., Defendant.

Page 5

639 N.Y.S.2d 5

225 A.D.2d 308

PUBLIC SERVICE MUTUAL INSURANCE CO., etc., Plaintiff-Respondent, v. Norma ZUCKER, etc., Defendant-Appellant and The D.L. Dineen Sales & Service Corp., Defendant.

Supreme Court, Appellate Division First Department.

March 5, 1996.

A.R. Scott, for Plaintiff-Respondent.

J.C. Young, for Defendant-Appellant.

Before SULLIVAN, J.P., and WALLACH, RUBIN, KUPFERMAN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered November 14, 1994, which conditionally denied defendant Zucker's motion to dismiss the complaint for want of prosecution, reversed, on the law, the motion is granted, and the complaint dismissed, without costs. The clerk is directed to enter judgment dismissing and severing the action as to defendant-appellant.

In May 1994, a year after joinder of issue on an amended set of pleadings, defendant Zucker served upon plaintiff a demand for resumption of this negligence action, calling for service and filing of a note of issue within 90 days, on pain of dismissal (CPLR 3216[b][3]. When plaintiff failed to react within the 90 days, Zucker moved for dismissal, ¹ at which point plaintiff's counsel submitted an affirmation acknowledging that Zucker's demand had been timely received but mislaid, causing the demand period to lapse without action. Citing prejudice to plaintiff from dismissal of what would now be a stale claim, counsel pointed to the complaint as evidence that plaintiff had a meritorious cause of action.

Where a party ignores a 90-day demand, the court may grant a motion to dismiss "on terms" (CPLR 3216[a], "unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]. Noting merit to the action and excuse for the delay, inter alia, the court denied the motion on condition that plaintiff file a note of issue within an additional 45 days, and that plaintiff's counsel pay $300 to Zucker's counsel for the inconvenience. Zucker appeals.

Even though "law office failure" may now be an acceptable excuse for failure to file a note of issue pursuant to a CPLR 3216 motion (Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71), the party seeking to avoid dismissal must still demonstrate a meritorious cause of action by an affidavit from someone with personal knowledge of the facts (Mosberg v. Elahi, 80 N.Y.2d 941, 590 N.Y.S.2d 866, 605 N.E.2d 353; Vernon v. Nassau County Med. Ctr., 102 A.D.2d 852, 477 N.Y.S.2d 24). Indeed, we have held that failure to offer a proper affidavit of merit on such a motion may even deprive the court of discretion to overlook instances of law office failure which contributed to the delay (Ramos v. Lapommeray, 135 A.D.2d 439, 440, 522 N.Y.S.2d 141). Counsel's affirmation, merely incorporating the complaint by reference, is insufficient as a demonstration of merit to the claim (see, Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723). The motion should have been granted unconditionally.

Zucker's failure to raise this point before the motion court does not prevent its consideration by this court on appeal, since the issue is purely one of law (see, Matter of Travelers Indem. Co. [Levy], 195 A.D.2d 35, 606 N.Y.S.2d 167).

All concur except RUBIN, J., who concurs in a separate memorandum as follows:

RUBIN, Justice, concurring:

Defendant's motion to dismiss the complaint for want of prosecution was not, as plaintiff contends, premature. Defendant served a 90-day notice pursuant to CPLR 3216(b)(3) by delivering it to a postal facility for delivery by certified mail, return receipt requested. The mailing receipt is stamped May 10, 1994, and the return receipt indicates that notice was received by counsel for plaintiff on May 12. On August 12, the 92nd day after the return receipt was signed, defendant served plaintiff with the motion to dismiss for failure to prosecute (CPLR 3216[a].

Service of papers is generally governed by CPLR 2103, which provides that "service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period" (CPLR 2103[b][2]. The...