Walk & Smile, Inc. v. 2491 Atlantic Ave. Corp., 1

• Decision Date: 01 May 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 540 N.Y.S.2d 541,150 A.D.2d 366
• Parties: WALK & SMILE, INC., Appellant v. 2491 ATLANTIC AVENUE CORP., Defendant Third-Party Plaintiff-Respondent; Automatic Sprinkler Company, Third-Party Defendant-Respondent. (Action) WALK & SMILE, INC., Appellant, v. AUTOMATIC SPRINKLER COMPANY, Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 541

540 N.Y.S.2d 541

150 A.D.2d 366

WALK & SMILE, INC., Appellant v. 2491 ATLANTIC AVENUE CORP., Defendant Third-Party Plaintiff-Respondent;

Automatic Sprinkler Company, Third-Party

Defendant-Respondent. (Action No. 1)

WALK & SMILE, INC., Appellant, v. AUTOMATIC SPRINKLER COMPANY, Respondent. (Action No. 2)

Supreme Court, Appellate Division,

Second Department.

May 1, 1989.

Gwertzman, Pfeffer, Toker & Lefkowitz, New York City (Andrew G. Vassale, of counsel), for appellant.

Joseph W. Conklin, New York City (John P. Healy, of counsel; Samuel G. Gaccione, on the brief), for third-party defendant-respondent in Action No. 1 and respondent in Action No. 2.

Before MANGANO, J.P., and BRACKEN, EIBER, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In two actions to recover damages for injury to property, the plaintiff in both actions appeals from an order of the Supreme Court, Kings County (Held, J.), dated May 29, 1987, which denied its motion to vacate a prior order of the same court, dated December 11, 1986, which dismissed the complaint in each action for failure to comply with a precalendar order of the same court, dated September 8, 1986.

ORDERED that the order is affirmed, with costs to the third-party defendant-respondent in Action No. 1 and respondent in Action No. 2.

After a precalendar conference on September 8, 1986, an order was issued directing the plaintiff to submit to an examination before trial on October 28, 1986, and directing it to complete discovery and file a note of issue on or before November 14, 1986. The trial was scheduled to commence on December 11, 1986. However, when the parties appeared before Justice Held on that date, it became apparent that the discovery deadlines in the precalendar order had been disregarded, and that no examinations before trial had been held. Justice Held dismissed the complaints in an order dated December 11, 1986. The plaintiff then moved to vacate that order, and its motion was denied in the order appealed from.

The plaintiff's purported excuse for its failure to abide by the discovery schedule set forth in the precalendar order dated September 8, 1986, is based essentially on its attorneys' neglect. Whether this neglect was excusable is a question best left to the discretion of the Supreme Court, Kings County, which must be afforded the latitude necessary in order to manage its own calendar. Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion.

MANGANO, J.P., BRACKEN and SULLIVAN, JJ., concur.

SPATT, J., dissents and votes to reverse the order appealed from and grant the plaintiff's motion to vacate the dismissal of the plaintiff's complaints on condition that, within 30 days after service upon it of a copy of this decision order, with notice of entry, (1) the attorneys for the plaintiff pay $1,000 in costs to the counsel for the defendant in each action for a total of $2,000, and (2) the plaintiff provides all discovery required in the precalendar order dated September 8, 1986; in the event those conditions are not complied with, SPATT, J., concurs and votes to affirm the order appealed from, with costs, with the following memorandum, in which EIBER, J., concurs:

While I agree that the Supreme Court, Kings County, should be afforded the latitude necessary to properly manage its own calendar, based on the facts in this case it was an improvident exercise of discretion to refuse to vacate the order dismissing the complaints.

Significantly, the record indicates that the plaintiff had no prior history of delay or failure to comply with discovery orders. The precalendar order dated September 8, 1986, directed the plaintiff's attorney to provide, within 30 days, a number of documents including invoices, "receipts of property damaged", itemized repair bills, a proof of loss statement, and repair and maintenance records for a six-month period. Apparently, this discovery was furnished in a timely manner. The examinations before trial of all parties were directed to be completed by October 28, 1986, a note of issue was to be filed on or before November 14, 1986, and the attorneys were to appear in court ready for trial on December 11, 1986. Thus, the plaintiff was afforded three months to complete discovery and be ready for trial.

According to the affirmation submitted by the plaintiff's attorney "by an oversight of our offices' EBT Clerk, the above examinations were mistakenly adjourned by stipulation to December 17, 1986". Annexed to the plaintiff's motion papers is a stipulation dated October 29, 1986, adjourning the depositio to December 17, 1986, which was signed by the attorney for the defendant 2491 Atlantic Ave. Corp. (hereinafter Atlantic). The defendant Automatic Sprinkler Company conceded that it consented to a "short adjournment" but declined to stipulate to the date requested by the plaintiff. The precalendar order provides that no adjournments of examinations before trial may be stipulated to between the attorneys, without the express consent of the court, except for a period not to exceed five business days. Also, it is undisputed that the plaintiff's attorney attempted but was unable to reschedule the depositions for December 8, 1986, three days before the trial was scheduled. On December 11, 1986, the plaintiff's attorney appeared before the trial court, but was not ready for trial, and the complaints were dismissed.

The plaintiff moved to vacate the order dismissing the complaints by notice of motion dated December 15, 1986. Although the return date of the motion was set for an unusually long time after the date the motion was made, this delay apparently was caused by the difficulty in obtaining an affidavit of merit from the plaintiff's president. That affidavit was submitted subsequent to the service of the original motion papers.

The Supreme Court denied the motion on the grounds that the plaintiff violated the terms of the precalendar order, that the motion to vacate was not returnable for five months, and that the affidavit of merit was conclusory and inadequate.

Whether the plaintiff's motion is viewed as one to vacate the sanction of dismissal for failure to comply with a discovery schedule (CPLR 3126) or as one to vacate a default in proceeding to trial, the plaintiff, in order to prevail, must establish (1) that there is a reasonable excuse for the default, and (2) that it has a meritorious cause of action (see, Battaglia v. Hofmeister, 100 A.D.2d 833, 835, 473 N.Y.S.2d 838; LaBuda v. Brookhaven Mem. Hosp. Med. Center, 98 A.D.2d 711, 469 N.Y.S.2d 112, affd. 62 N.Y.2d 1014, 479 N.Y.S.2d 493, 468 N.E.2d 675). With regard to the question of whether the plaintiff has a meritorious cause of action, it ultimately supplied an affidavit of merit from its president Anthony Collado, in which he states that the "pipes located on the second, third and fourth floors of the above building froze and ruptured causing extensive water damage to my merchandise and fixtures located in my premises". The defendant Automatic Sprinkler Company admitted in its answer that, prior to this occurrence, it "entered into a contract with the owner of the building located at 2491 Atlantic Avenue, Brooklyn, New York, to inspect the sprinkler system on a monthly basis". The plaintiff has sufficient demonstrated a meritorious cause of action to recover damages caused by the ruptured pipes in the sprinkler system (see, Payless Discount Centers, Inc. v. 24-29 North Broadway Corp., 83 A.D.2d 960, 961, 443 N.Y.S.2d 21 ["Sprinkler pipes do not ordinarily break if they are properly installed and maintained"]; see also, Salch...