Sortino v. Fisher

• Decision Date: 10 December 1963
• Citation: 245 N.Y.S.2d 186,20 A.D.2d 25
• Court: New York Supreme Court — Appellate Division
• Parties: Joseph SORTINO and Jesse Sortino, Plaintiffs-Respondents, v. Sidney L. FISHER, Defendant-Appellant.

Page 186

245 N.Y.S.2d 186

20 A.D.2d 25

Joseph SORTINO and Jesse Sortino, Plaintiffs-Respondents, v. Sidney L. FISHER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 10, 1963.

[20 A.D.2d 26] Thomas J. Cunningham, Jr., New York City, of counsel (William P. Kennedy, New York City, attorney), for appellant.

Veit E. Kaufmann, Corona, of counsel (Kaufmann & Friedman, Corona, attorneys), for respondents.

Before BREITEL, J. P., and RABIN, VALENTE, STEVENS and BERGAN, JJ.

BREITEL, Justice Presiding.

Defendant in a personal injury negligence action appeals from an order denying his motion to dismiss the complaint for failure to prosecute. The motion was made under the then section 181 of the Civil Practice Act (now CPLR Rule 3216).

The accident occurred September 7, 1959, although both briefs refer to it as having occurred in 1957. The action was begun November 11, 1960, and issue was joined December 13, 1960. The last activity in the case prior to the present motion was when, on March 9, 1962, the examinations before trial were completed. Defendant moved to dismiss for neglect on August 28, 1962.

The accident involved a two-car intersection collision in Patchogue, Long Island. Plaintiff wife, a passenger in one of the automobiles, stated in her affidavit of merits that 'I am informed that the light was green for us at all times'. Her injuries as described in the bill of particulars are bruises, abrasions and lacerations, together with the customary polysyllabic references to accompanying wide-ranging physical and mental conditions. The husband, according to the bill, sustained a swelling and contusion on his chest.

The alleged excuse for delay is, first, that there was not too much delay since the examinations before trial were not completed until March 19, 1962 and, second, that plaintiffs were waiting for court consolidation to take effect on September 1, 1962 so that the case could be transferred to a court of lesser monetary jurisdiction instead of remaining in the Supreme Court. In resisting the motion to dismiss, plaintiffs offered to stipulate to transfer the action to the Civil Court of the City of New York and to notice it for trial immediately. Special Term in denying the motion referred to this offer.

The excuse for delay is insufficient, as is the affidavit of merits. As a consequence, the order should be reversed and the action dismissed. Because there is concurrently a substantial number of similar appeals and evident difficulty in understanding the principles applicable, comment is merited. ¹

In the first place, the newly-enacted CPLR Rule 3216 is substantially similar to its predecessor section of the Civil Practice Act, section 181. ² The legislative history reveals that the purpose was not to make any change in the power and practice of the courts in controlling the flow of litigation by dismissing Krell v. Pelham Syndicate, Inc., history also reveals that it was determined not to provide rigid and particularized grounds for dismissal in order to preserve the flexibility of existing practice and to enable 'the court adequately to deal with the multifarious situations which might amount to want of prosecution and the numerous factors that might excuse a delay' (McKinney's Cons.Laws of N. Y., Book 7B, CPLR Rule 3216, Notes at p. 839; 1st Preliminary Report, Advisory Comm. on Practice, N.Y.Legis. Doc. [1957], No 6[b], pp. 101-103; see 4th Report, Advisory Comm. on Practice, N.Y.Legis. Doc. [1960], No. 20, p. 194). It is not the present purpose to express any rigid standards where none existed before, but to describe the flexible, interrelated factors applied in recent years.

The overriding motivation for dismissing neglected actions is that court calendars are heavily burdened, especially certain calendars, and it is almost invariably true that neglected actions are of little or no merit. Even after being placed on the calendar, sometimes only to avoid dismissal for neglect, they are kept there to compel settlements. There, however, they serve to clog the calendars, and sometimes even to obtain help in settlement from harassed judges who press to clear the calendars. Under the circumstances litigants with actively prosecuted cases possessing merit are entitled to the facilities of the courts rather than those actions which have been delayed and which possess little or no merit (cf. Plachte v. Bancroft, Inc., 3 A.D.2d 437, 161 N.Y.S.2d 892, in which the use of the general preference as a control is discussed; see, Lakowitz v. Marlin Gardens, Inc., 5 A.D.2d 981, 172 N.Y.S.2d 944, app. dism. 6 N.Y.2d 818, 188 N.Y.S.2d 206, 159 N.E.2d 693, repeating the warning that the neglect rules would be strictly enforced). At the same time defendants are entitled to be free, after reasonable opportunity for plaintiffs to establish the contrary, of the burden of defending actions which possess little or no merit, or even of defending actions of merit but too long delayed. Thus, there have evolved a number of relevant factors. No one or any combination is conclusive. Courts are keenly aware of the heavy responsibility entailed in foreclosing cases of merit, and should do so only under constraint of justifying circumstances.

1. Extent of Delay

Any unreasonable delay, depending upon the nature of the case, the degree of merit, and the particular difficulties which the litigating plaintiff faced, may support dismissal. And for this purpose no particular period of avoidable delay is required; but with relation to the particular case it should be deemed substantial. In one case, to warrant dismissal, delay may be a matter of months and in another, years (see, e. g., White v. Good Operating Corp., 19 A.D.2d 802, 243 N.Y.S.2d 260 [73 mos. delay in negl. action]; Noble v. Hayakawa, 16 A.D.2d 616, 225 N.Y.S.2d 985 [20 mos. delay in action on note]; Hardware Mutual Casualty Co. v. Rosenberg, 3 A.D.2d 988, 163 N.Y.S.2d 88 [14 mos. delay on assigned personal injury action under W.C.L.]; and, of course, rule 156 of the Rules of Civil Practice, omitted from CPLR, entitled a defendant to move to dismiss the complaint after delay of six months from joinder of issue ³). In determining whether delay is substantial the periods elapsing between date of accrual of cause of action, date when action was begun, and date when issue was joined are material in assessing how substantial is the delay following the last stir of activity. Thus, while the last delay in this case is but five months, it is two and a half years since joinder of issue and the action involves a 1959 accident.

2. Law Office Failures

Excuses for avoidable delay are insufficient which merely lay the delay at the door of plaintiff himself, his lawyer of record, trial counsel, other associated counsel, or employees of any of the lawyers (e. g., Wilson v. Whitehall Hotel Corp., 20 A.D.2d 525, 245 N.Y.S.2d 204; Maloney v. Springfield Development Co., 20 A.D.2d 526, 245 N.Y.S.2d 209; Milligan v. Hycel Realty Corp., 20 A.D.2d 527, 245 N.Y.S.2d 210; Burke v. City of New York, 18 A.D.2d 898, 237 N.Y.S.2d 980; Cronin v. City of New York, 18 A.D.2d 995, 238 N.Y.S.2d 734; Benjamin v. Chock Full O'Nuts, Inc., 18 A.D.2d 906, 237 N.Y.S.2d 986; Waldman v. Cedar Mgt. Corp., 11 A.D.2d 646, 201 N.Y.S.2d 238; Fischetti v. 242 East 19th Street Corp., 4 A.D.2d 867, 167 N.Y.S.2d 47; Moshman v. City of New York, 3 A.D.2d 825, 160 N.Y.S.2d 977). Indeed, shifting the cause of avoidable delay from one to another does not make the neglect any the less. Besides, such shifting makes it too easy to avoid ultimate responsibility and too difficult to determine the actual cause of the delay.

3. Settlement Negotiations

That settlement negotiations have occurred between representatives for defendant and plaintiff is sometimes a reasonable excuse for not taking any particular action while the negotiations are pending. The excuse, however, cases to have effect within a brief interval after the last communication (e. g., Wilson v. Whitehall Hotel Corp., supra; Krell v. Pellham Syndicate, Inc., 14 A.D.2d 845, 220 N.Y.S.2d 966; Patron v. 112 East 111th Street Corp., 14 A.D.2d 843, 220 N.Y.S.2d 967; Trapani v. Samuels, 3 A.D.2d 861, 161 N.Y.S.2d 648 [2nd Dept.], lv. den. 3 N.Y.2d 931, 167 N.Y.S.2d 952, 145 N.E.2d 890; Fast v. Meenan Oil Co., Inc., 1 A.D.2d 889, 149 N.Y.S.2d 332 [2 nd Dept.]; Mann v. Nednil Terrace Corp., 35 Misc.2d 182, 232 N.Y.S.2d 213 [App. Term, 1st Dept.]; cf. Maizonet v. Lee Properties, Inc., 11 A.D.2d 667, 201 N.Y.S.2d 751).

4. Other Pre-trial Activity

Pre-trial activity in the nature of discovery proceedings and motion practice may be, of course, an excuse for not noticing the action for trial immediately (cf. Carvel Dari-Freeze Stores, Inc. v. Lukon, 18 A.D.2d 700, 236 N.Y.S.2d 374; modifying Sup., 219 N.Y.S.2d 716 [Munder, J.], mot. lv. dism. 12 N.Y.2d 1067, 239 N.Y.S.2d 889, 190 N.E.2d 247; De Long Corp. v. J. Rich Steers, Inc., 10 A.D.2d 705, 198 N.Y.S.2d 134). However, under the new rule with respect to the filing of statements of readiness in personal injury and death actions in negligence even this excuse does not suffice to justify any but a short delay (Part 1, Rule IVof the Supreme Court Bronx and New York County Rules). Moreover, in such cases under the newer rules the avoidable delay in filing a statement of readiness may become such neglect as will support dismissal of the action.

5. Statute of Limitations

That the Statute of Limitations may have run is a double-edged consideration. While it may be helpful sometimes in discounting delays, more often the running of the statute will re-enforce the view that the action should be dismissed (e. g., Reilly v. Mirailh, 20 A.D.2d 526, 245 N.Y.S.2d 207; Smallen v. Sherman Sq. Hotel Corp., 20 A.D.2d 527, 245 N.Y.S.2d 212; Mercer v. Portsmouth Associates, Inc., 18 A.D.2d 614, 234 N.Y.S.2d 275; and many of the other short-statute tort cases cited herein in which the court did not...