Torres v. Metro N. R.R.

• Decision Date: 23 December 2016
• Docket Number: Index No. 115850/2009
• Citation: 2016 NY Slip Op 33115 (U)
• Parties: GRACIE TORRES and MERARY PIZZARO, Plaintiffs v. METRO NORTH RAILROAD, THYSSENKRUPP ELEVATOR CORPORATION, "JOHN DOE," and "RICHARD ROE," Defendants
• Court: New York Supreme Court

2016 NY Slip Op 33115(U)

GRACIE TORRES and MERARY PIZZARO, Plaintiffs
v.
METRO NORTH RAILROAD, THYSSENKRUPP ELEVATOR CORPORATION,
"JOHN DOE," and "RICHARD ROE," Defendants

Index No. 115850/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FILED: January 6, 2017
December 23, 2016

DECISION AND ORDER

I. BACKGROUND

Plaintiffs commenced this action for personal injuries November 19, 2009, alleging that they slipped and fell on a wet spot on escalator #6 at Grand Central Station in New York County. Plaintiffs served their summons and unverified complaint only on defendant Thyssenkrupp Elevator Corporation. After multiple conferences before the court regarding disclosure failed to produce plaintiffs' compliance with defendant's disclosure requests, defendant twice moved to dismiss the complaint, in March 2011 and November 2013, based on plaintiffs' failure to prosecute the action. Both motions were resolved by stipulations in which plaintiffs agreed to provide defendant its requested disclosure and to conduct depositions, but plaintiffs failed to provide most of the disclosure they agreed to provide, and no depositions were conducted.

When plaintiffs' attorney failed to appear for a status conference scheduled July 28, 2014, the court (Tingling, J.)

Page 2

dismissed the action. 22 N.Y.C.R.R. § 202.27(b). Plaintiffs' attorney attests that he failed to enter the conference date on his calendar, was on vacation with his son on that date, contacted defendant, and belatedly provided medical records in an unsuccessful attempt to reach a stipulation restoring the action to the status conference calendar.

Plaintiffs now move to restore the action to the calendar, supported by their affidavits that they have not intended to abandon the action, the allegations in the previously unverified complaint are true, and thus the action is meritorious. Aff. of Gary S. Fish Ex. 2 ¶ 2, Ex. 3 ¶ 2. Since Justice Tingling dismissed the action due to plaintiffs' nonappearance at a scheduled conference, 22 N.Y.C.R.R. § 202.27(b); Biton v. Turco, 88 A.D.3d 519, 519 (1st Dep't 2011); Chiaramonte v. Coppola, 81 A.D.3d 426, 426 (1st Dep't 2011); Aaron v. Greenberg & Reicher, LLP, 68 A.D.3d 533, 534 (1st Dep't 2009); Espinoza v. Concordia Intl. Forwarding Corp., 32 A.D.3d 326, 327 (1st Dep't 2006), however, plaintiffs must meet the standards for vacatur of the dismissal under C.P.L.R. § 5015(a), rather than for restoration of the action to the calendar under C.P.L.R. § 3404. Cato v. City of New York, 70 A.D.3d 471, 471 (1st Dep't 2010); Donnelly v. Treeline Companies, 66 A.D.3d 563, 564 (1st Dep't 2009).

II. VACATUR OF THE DISMISSAL

Defendant urges that plaintiffs' motion be denied because plaintiffs failed to satisfy C.P.L.R. § 2103(b)(5) when they faxed their motion to defendant's attorney, but mailed it to an

Page 3

incorrect address for the attorney. Although plaintiffs did mail the motion to the incorrect address and provide no evidence that they in fact mailed the motion to the correct address, the court disregards this technical defect, as defendant admits it received plaintiffs' faxed copy and thus received notice of the motion, enabling it to oppose the motion. C.P.L.R. § 2001; Ruffin v. Lion Corp., 15 N.Y.3d 578, 582 (2010). Given this determination that the service by facsimile July 23, 2015, was effective, plaintiffs served their motion within the required one year period after the dismissal July 28, 2014, that they seek to vacate. C.P.L.R. § 5015(a)(1).

The court therefore turns to the merits of plaintiffs' motion. Plaintiffs may vacate the dismissal by presenting a reasonable excuse for their default and evidence of a meritorious claim. Id.; Johnson-Roberts v. Ira Judelson Bail Bonds, 140 A.D.3d 509, 509 (1st Dep't 2016); Kassiano v. Palm Mgt. Corp., 95 A.D.3d 541, 541 (1st Dep't 2012); Parker v. Alacantara, 79 A.D.3d 429, 429 (1st Dep't 2010); Chelli v. Kelly Group, P.C., 63 A.D.3d 632, 633 (1st Dep't 2009).

A. Lack of a Reasonable Excuse

Law office failure, C.P.L.R. § 2005, may constitute a reasonable excuse, as long as the conduct is not part of a pattern of persistent and willful inaction, dilatory behavior, or willful default and neglect. Imovegreen, LLC v. Frantic, LLC, 139 A.D.3d 539, 539-40 (1st Dep't 2016); Pryce v. Montefiore Med. Ctr., 114. A.D.3d 594, 594-95 (1st Dep't 2014); Galaxy Gen. Contr.

Page 4

Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790 (1st Dep't 2012); Ward v. New York City Health & Hosps. Corp., 82 A.D.3d...