Pursoo v. Ngala-El,

• Court: United States State Supreme Court (New York)
• Writing for the Court: RANDY SUE MARBER, J.
• Citation: 937 N.Y.S.2d 844
• Decision Date: 03 February 2012
• Parties: Teresa PURSOO, Plaintiff, v. Yasmin NGALA–EL a/k/a Yasmin Ngala, Individually and as the Administrator of the Estate of Ahmed Aristide Ngala (a/k/a Aristide Ngala), Patricia Ngala a/k/a Patricia Felton Ngala, Buccarri Ngala a/k/a Bukhari Ngala–El and Harvey Weisman d/b/a Micro Leasing, Defendants.

937 N.Y.S.2d 844

Teresa PURSOO, Plaintiff,
v.
Yasmin NGALA–EL a/k/a Yasmin Ngala, Individually and as the Administrator of the Estate of Ahmed Aristide Ngala (a/k/a Aristide Ngala), Patricia Ngala a/k/a Patricia Felton Ngala, Buccarri Ngala a/k/a Bukhari Ngala–El and Harvey Weisman d/b/a Micro Leasing, Defendants.

Supreme Court, Nassau County, New York.

Feb. 3, 2012.

937 N.Y.S.2d 844

Raymond M. Smolenski, P.C., Bay Shore, for the Plaintiff.

Donohue, McGahan, Catalano & Belitsis, Erik H. Rosanes, Esq., Jericho, for Defendant Yasmin Ngala–El.

Chistopher L. Grayson, P.C., Garden City, for Defendant Patricia Ngala.

Buccarri Ngala, Dix Hills, pro se.

937 N.Y.S.2d 845

RANDY SUE MARBER, J.

Upon the foregoing papers, the Plaintiff's motion seeking an order a) vacating the dismissal of the action; b) restoring the action to active status; c) granting the Plaintiff an extension of time to file a Note of Issue; and d) scheduling a conference for further discovery, is decided as provided herein.

Pursuant to the Certification Order of this Court dated January 1, 2010, the Plaintiff was directed "to file a Note of Issue within 90 days." The Order stated that if plaintiff failed to do so "this action is deemed dismissed without further Order of the Court. ( CPLR 3216 )."

Thereafter, on April 23, 2010, a stipulation was filed by the parties extending the Plaintiff's time to file a Note of Issue for 60 days through and including June 21, 2010. To date, notwithstanding the June 21, 2010 deadline set forth in the stipulation, the Plaintiff has failed to file a Note of Issue. Unbeknownst to the Plaintiff, on September 15, 2010, the action was dismissed. Upon learning of the dismissal, the Plaintiff moved, inter alia, to restore the case to active status and to extend the time to file a Note of Issue.

In support of her motion, the Plaintiff argues that she had no intention of abandoning the case. Rather, her failure to file a Note of Issue resulted from the fact that, after the parties executed the stipulation, the Plaintiff moved, on April 24, 2010, for entry of a default judgment against the Defendant, Patricia Ngala. She took no further action as she awaited a decision on the motion. After an order denying the motion was entered on August 19, 2010, the Plaintiff filed an appeal of the order with the Appellate Division: Second Department on September 28, 2010. On November 1, 2011, the Appellate Division: Second Department rendered a decision which affirmed the branch of this Court's Order denying the Plaintiff's motion seeking a default judgment against the Defendant, Patricia Ngala.

CPLR § 3216(a) provides that "[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a Note of Issue, the court on its own initiative, or upon motion, may dismiss the party's pleadings on terms". A case cannot be dismissed pursuant to CPLR § 3216(a), however, unless a written demand is served upon the party against whom relief is sought to resume prosecution. The demand must comport with statutory requirements and contain a statement that default by the party upon whom such notice is served will constitute a basis for a motion by the party serving the demand for dismissal as against the recipient party for unreasonable neglect to proceed (CPLR § 3216[b][3] ).

Nevertheless, CPLR § 3216, however triggered, is "extremely forgiving" of litigation delay ( Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997] ), and there are a variety of circumstances in which the failure to comply with a CPLR § 3216 demand should in the exercise of proper discretion be excused. Gibson v. Fakheri, 77 A.D.3d 619,...