Umeze v. Fidelis Care N.Y.

• Decision Date: 21 September 2010
• Citation: 76 A.D.3d 873,908 N.Y.S.2d 186
• Parties: Ben UMEZE, M.D., Plaintiff-Respondent, v. FIDELIS CARE NEW YORK, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 186
76 A.D.3d 873

Ben UMEZE, M.D., Plaintiff-Respondent,
v.
FIDELIS CARE NEW YORK, et al., Defendants-Appellants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 21, 2010.

908 N.Y.S.2d 187

Sedgwick, Detert, Moran & Arnold, LLP, New York (John T. Seybert of counsel), for appellants.

Law Offices of Joseph N. Obiora, Jamaica (Joseph N. Obiora of counsel), for respondent.

GONZALEZ, P.J., CATTERSON, MOSKOWITZ, RENWICK, RICHTER, JJ.

76 A.D.3d 873

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about January 7, 2009, which granted defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute to the extent of directing plaintiff to resume prosecution of the action within 10 days of service of the order with notice of entry, affirmed, without costs.

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by

76 A.D.3d 874

filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" ( Primiano v. Ginsberg, 55 A.D.3d 709, 709, 865 N.Y.S.2d 639 [2008]; see Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119 [2006], lv. denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 [2007] ). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216 [e] ). Furthermore, CPLR 3216 "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 "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" ( Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [2009] ).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action ( see e.g. Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633-634, 768 N.Y.S.2d 735, 800 N.E.2d 1102 [2003] ). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" ( Salch v. Paratore, 60 N.Y.2d 851, 852-53, 470 N.Y.S.2d 138, 458 N.E.2d 379 [1983] ).

All concur except GONZALEZ, P.J. and CATTERSON, J. who dissent in a memorandum by CATTERSON, J. as follows:

908 N.Y.S.2d 188

CATTERSON, J. (dissenting).

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements-filing the note of issue or tendering a justifiable excuse for not so doing-with which the plaintiff in this case failed to comply.

76 A.D.3d 875

On October 21, 2003, the plaintiff, a provider physician, commenced this action pro se alleging, inter alia, breach of contract against defendant Fidelis, a health management organization and other defendants. On or about November 3, 2003, the defendants entered their notice of appearance. For approximately the next five years, the action remained dormant except for one set of interrogatories served by the defendants on the plaintiff.

On June 18, 2008, the plaintiff received notice pursuant to CPLR 3216 demanding that he resume prosecution within 90 days by filing a note of issue. The 90-day period expired on September 16, 2008. It is undisputed that during those 90 days, the plaintiff did not...