Pursoo v. Ngala-El

Decision Date03 February 2012
Citation937 N.Y.S.2d 844
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.
CourtNew York Supreme Court

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.

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, 619–620, 908 N.Y.S.2d 356 (2d Dept.2010) ; Zito v. Jastremski, 35 A.D.3d 458, 459, 825 N.Y.S.2d 255 (2d Dept.2006).

A plaintiff who receives a 90 day notice is required to either serve and file a timely Note of Issue or move, before expiration of the 90 day period, to vacate the notice or extend the 90 day period. CPLR § 2004 ; Cope v. Barakaat, 89 A.D.3d 670, 671, 931 N.Y.S.2d 910 (2d Dept.2011) ; Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 898 N.Y.S.2d 869 (2d Dept.2010). A plaintiff who fails to pursue either option may still avoid dismissal of the complaint by demonstrating both a justifiable excuse for the delay in responding to the 90 day notice and a meritorious cause of action. CPLR § 3216(3); Palumbo v. Dell, 73 A.D.3d 723, 899 N.Y.S.2d 642 (2d Dept.2010) ; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237 (2d Dept.2008).

While the failure to comply with a court order directing the filing of a Note of Issue can, in proper circumstances, provide the basis for dismissal of a complaint pursuant to CPLR § 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the statutory preconditions to dismissal set forth in the statute are satisfied. Tolmasova v. Umarova, 90 A.D.3d 1028, 934 N.Y.S.2d 866 (2d Dept.2011). The failure to serve a written notice that conforms to the requirements of CPLR § 3216 is the failure of a condition precedent to dismissal of the action. Passet v. Menorah Nursing Home, Inc., 68 A.D.3d 735, 736, 889 N.Y.S.2d 659 (2d Dept. 2009) ; Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816 (2d Dept. 2009).1

As previously noted, the Certification Order herein dated January 20, 2010 constitutes a valid 90 day demand notice as it advised the Plaintiff that the failure to comply therewith would serve as a motion to dismiss the action. Wasif v. Khan, 82 A.D.3d 1084, 1085, 919 N.Y.S.2d 203 (2d Dept.2011). This is not the end of the inquiry, however.

The stipulation filed April 23, 2010, which extended the Plaintiff's time to file a Note of Issue for 60 days up to and including June 21, 2010, does not constitute a 90 day demand since it lacks, inter alia, the required language advising the Plaintiff that the failure to comply would serve as a basis for dismissal under CPLR § 3216. Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333 (2d Dept.2011) ; Heifetz v. Godoy, 38 A.D.3d 605, 832 N.Y.S.2d 261 (2d Dept.2007).

Here, because the parties' stipulation, "So–Ordered" by this Court, does not advise the Plaintiff that a failure to comply would serve as a basis to dismiss the action, the Plaintiff's motion to restore the case to active status, to extend the time to file a Note of Issue and to establish a discovery schedule as to the Defendant, Patricia Ngala, is GRANTED. The Plaintiff's time to file a Note of Issue is hereby extended to April 16, 2012.

The Court notes that the parties were afforded an opportunity to comment on the holding and relevance of the recent Court of Appeals decision (November 21, 2011) entitled Cadichon v. Facelle, 18 N.Y.3d 230 (2011). The factual...

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