Selletti v. Liotti

• Decision Date: 08 January 2010
• Docket Number: Motion Cal. Seq.:13,Docket Number:11169/00,Motion Cal. No.:41
• Citation: 2010 NY Slip Op 31721
• Parties: CHRISTOPHER SELLETTI,Plaintiff, v. THOMAS F. LIOTTI,Defendant.
• Court: New York Supreme Court

2010 NY Slip Op 31721

CHRISTOPHER SELLETTI, Plaintiff,

v.THOMAS F. LIOTTI, Defendant.

Docket Number:11169/00

Motion Cal. No.:41

Motion Cal. Seq.:13

Sup Ct, Queens County

Motion Date:11/18/09

January 8, 2010

The following papers numbered 1 to 13 read on this motion by defendantThomas Liotti for an order accepting the within-enclosed "Notice of Cross Motion" and "Affidavit in Support of Cross Motion," as opposition papers to Motion Sequence 12 (plaintiff's motion), and designating the Notice of Cross Motion as a separate motion, Motion Sequence 13; and upon this cross-motion by plaintiffChristopher Selletti for an order granting sanctions against defendant in the sum of $10,000.00 to the Client Security Fund.

PAPERS NUMBERED

Notice of Motion with annexed Cross Motion-Affidavit-Exhibits............ 1-8¹

Notice of Cross Motion-Affidavit-Exhibits............................................... 9-11

Reply.......................................................................................................... 12-13

Present: HONORABLE PATRICIA P. SATTERFIELD, Justice

Upon the foregoing papers, it is ordered that the motion with annexed cross-motion and the cross-motion are disposed of as follows:

This is an action sounding in legal malpractice arising from the representation of plaintiffChristopher Selletti("plaintiff') by defendantThomas F. Liotti("defendant"), in an underlying federal copyright infringement action.The crux of the legal malpractice claim is the allegation that defendant's negligent actions caused the imposition of a discovery sanction and the posting of abond, which ultimately served as the basis for the dismissal of plaintiff's federal action.By memorandum decision of the Court dated February 13, 2002[Golia, J.], defendant's motion for summary judgment and dismissal of the legal malpractice claim was denied on the ground that "the decision of the United States Court of Appeals for the Second Circuit affirming the dismissal of the copyright action does not by itself negate any elements of the plaintiff's cause of action for legal malpractice."Additionally, the court stated that "there are issues of fact concerning whether it was the defendant Liotti's own wrongful acts, attributed by the federal court to plaintiff Selletti, which furnished or contributed to the first and second grounds for dismissal of the copyright action."Thereafter, plaintiff moved for summary judgment on liability as to so much of the legal malpractice claim which alleges that defendant's actions caused the imposition of, inter alia, the discovery sanction.Defendant opposed that motion, contending that there are issues of fact for trial concerning plaintiff's credibility and conduct during the federal action.By order of the Court dated May 21, 2004[Golia, J.], plaintiff's motion was denied, and in making its determination, the Court stated, in relevant part, the following:

Here, there are issues of fact concerning the conduct of Selletti during the prosecution of the federal action which must be resolved at trial.Such determinations cannot be based solely upon the various federal court decisions issued during the course of the federal action, or upon conflicting affidavits of the parties.

Subsequently, by decision and order dated January 9, 2006[Satterfield, J.], plaintiff's motion for an order staying the trial of this action until the completion of depositions was granted solely to the extent that the parties were directed to appear for depositions, if necessary, within forty-five (45) days of service of a copy of that order with notice of entry, and the trial of this action was stayed until the completion of discovery.That order further provided that upon completion of discovery, "the parties shall submit a stipulation affirming that all discovery has been completed with an attached copy of this order to the trial rescheduling part, and the action shall be placed back on the trial calendar."Defendant subsequently moved for summary judgment, which was denied by order dated October 20, 2006.On or about July 6, 2009, defendant served a 90-day notice upon plaintiff; plaintiff, on or about August 21, 2009, sent to defendant a stipulation to restore the matter to the trial calendar, as required by the January 9, 2006 decision and order of this Court, which defendant allegedly refused to sign.Thereafter, plaintiff moved for an order, inter alia, vacating the 90-day Notice.By memorandum decision dated December 23, 2009, this Court held that motion in abeyance upon submission of the instant motion and cross-motion on November 18, 2009.In making its determination, this Court stated:

PlaintiffChristopher Selletti moves for an order vacating the 90-day Notice dated July 6, 2009, and modifying the order of this Court dated January 9, 2006 to vacate the stay, and directing the Calendar Clerk to place the matter on the Active Calendar.This motion was submitted without opposition on October 14, 2009.Thereafter, defendant moved this Court for an order seeking, inter alia, tointerpose opposition to this motion and allowing an annexed crossmotion to be deemed opposition thereto, which was fully submitted, along with plaintiff's cross motion for sanctions, on November 18, 2009.

Consequently, in light of the extensive history in this matter and equally extensive motion practice, which will be detailed in a subsequent decision, the determination of the instant motion is hereby held in abeyance to be decided with the notice of motion by defendant and the cross motion by plaintiff, submitted at the November 18, 2009 motion calendar of this Court.

Thus, it is upon the foregoing that defendant moves for an order deeming this motion, with the annexed cross motion seeking dismissal for want of prosecution and sanctions, as opposition to the motion by plaintiff seeking vacatur of the 90 day notice and restoration of this action, which was submitted without opposition on October 14, 2009, and held in abeyance for determination by this Court with the instant motion.Moreover, plaintiff cross moves for sanctions in the amount of $10,000.00, pursuant to Rule 130.

From the outset, it is so deemed by this Court that the cross motion for want of prosecution and sanctions will be considered opposition to the motion by plaintiff seeking vacatur of the 90 day notice and restoration of this action.Thus, defendant's motion for an order accepting the withinenclosed "Notice of Cross Motion" and "Affidavit in Support of Cross Motion," as opposition papers to Motion Sequence 12 (plaintiff's motion), and designating the Notice of Cross Motion as a separate motion, Motion Sequence 13, is granted to the aforementioned extent.In light thereof, this Court will first consider the motion by plaintiff for, inter alia, vacatur of the 90 day notice.

Here, in response to the 90 day notice served upon plaintiff on July 6, 2009, plaintiff sought to stipulate to restore the matter to the trial calendar on or about August 21, 2009, as required by the January 9, 2006 decision and order of this Court, to which defendant refused.By letter dated August 31, 2009, defendant stated, in pertinent part:

We decline to accept your acquiesce in allowing this case to tie up the Court's docket in perpetuity.I have been dealing with Mr. Selletti and later you, for approximately 14 years in a case that is completely frivolous.[] Your conduct is outrageous and unconscionable.

In light of your dilatory tactics, our office forwarded to you a stipulation of discontinuance along with the ninety day notice.Should you wish to pursue that course of action, we will still accept that signed stipulation from you.

In response thereto, plaintiff served the motion to vacate the 90 day notice.In opposition, defendantcross-moves to dismiss this action, pursuant to Section 3216 of the CPLR, the statutory section which provides for dismissal for want of prosecution, and states, in pertinent part:

Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who is liable... 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.Unless the order specifies otherwise, the dismissal is not on the merits.

A plaintiff who has been served with a 90-day notice, pursuant to CPLR § 3216, is required to file a note of issue in compliance with the notice or move, before the default date, either to vacate the notice or to extend the 90-day period, and if the plaintiff does neither, then the plaintiff is required to provide a justifiable excuse for his delay and to demonstrate a meritorious cause of action.Primiano v. Ginsberg, 55 A.D.3d 709(2nd Dept.2008);Randolph v. Cornell, 29 A.D.3d 557(2nd Dept.2006);Sharpe v. Osorio, 21 A.D.3d 467(2nd Dept.2005);Garcia v. Roopnarine, 18 A.D.3d 607(2nd Dept.2005);see, also, Frazzetta v. P.C. Celano Contracting, 54 A.D.3d 806(2nd Dept.2008);Aquilar v. Nassau Health Care Corp., 40 A.D.3d 788(2nd Dept.2007)[ to avoid dismissal plaintiff must "demonstrate a justifiable excuse for [the] failure to comply with the order and a meritorious cause of action (citations omitted)"];Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633(2003)["If a party fails to comply with a 90-day demand to serve and file a note of issue, but demonstrates a 'justifiable excuse for the delay and a good and meritorious cause of action'(CPLR 3216[e]), the trial court may not dismiss the action"].

CPLR 3216, however, is "'extremely forgiving'(citations omitted) in that it 'never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed'(citations omitted)."Primiano v. Ginsberg, supra."While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a...