Wilson v. Nembhardt

• Decision Date: 18 February 1992
• Citation: 580 N.Y.S.2d 70,180 A.D.2d 731
• Parties: Cynthia P. WILSON, etc., Respondent, v. Oswald D. NEMBHARDT, Defendant, Beryl Lawrence, Appellant
• Court: New York Supreme Court — Appellate Division

Page 70

580 N.Y.S.2d 70

180 A.D.2d 731

Cynthia P. WILSON, etc., Respondent, v. Oswald D. NEMBHARDT, Defendant Beryl Lawrence, Appellant.

Supreme Court, Appellate Division Second Department

Feb. 18, 1992.

Pizzitola & DiBlasi, Brooklyn (Vincent A. DiBlasi and Lawrence B. Lame, of counsel), for appellant.

Linda Clarke, Brooklyn, for respondent.

Before THOMPSON, J.P., and BRACKEN, HARWOOD and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to compel the defendants to repair certain property, and to recover damages for injury to property, the defendant Beryl Lawrence appeals from an order of the Supreme Court, Kings County (Ramirez, J.), dated March 30, 1990, which granted the plaintiff's motion to vacate an order of the same court dated November 3, 1989, granting the defendant's motion to dismiss the action for failure to prosecute, and restored the action to the trial calendar.

ORDERED that the order is reversed, as a matter of discretion, with costs, the plaintiff's motion is denied, and the order dated November 3, 1989, and any judgment entered thereon, is reinstated.

The present action was commenced by the service of a summons and complaint in 1984. On or about December 21, 1987, the attorneys for the defendant Beryl Lawrence served a "90-day notice". On or about July 13, 1989, the same attorneys, on behalf of their client, made a motion to dismiss the plaintiff's action for failure to prosecute (see, CPLR 3216). The motion was returnable on August 3, 1989, and oral argument on the motion was scheduled for August 17, 1989. On August 15, 1989, two days before the motion to dismiss was argued, the plaintiff filed a note of issue, without leave of court. By order dated November 3, 1989, the motion was granted, without opposition, and the Clerk of the court was directed to enter judgment in favor of the defendant Beryl Lawrence and against the plaintiff. A second motion by the appellant to strike the note of issue became academic in light of the dismissal of the action.

On January 17, 1990, the attorney for the plaintiff made a motion to vacate her default in opposing the appellant's motion to dismiss, to vacate the order granting that motion (see, CPLR 5015[a], and to "restore" her action to the trial calendar. The plaintiff's attorney justified her failure to respond to the appellant's "90-day notice" by claiming that she had not received it until March 16, 1988, when she found it in the mailbox of her residence in Brooklyn, and that she promptly responded to it by serving a request for a preliminary conference. She justified her failure to oppose the appellant's subsequent motion to dismiss by stating, inter alia, that the "defendants' [sic ] counsel's oral representations [caused her] not [to] realize until late in the day [of August 17, 1989] that her appearance would be required". On the argument date of the motion (August 17, 1989), a representative of the plaintiff's attorney presented what is alleged to have been an affidavit of actual engagement. This document, however, is not included in the record. The plaintiff's attorney also claimed that the defendant's attorney reneged on his oral agreement to withdraw the motion to dismiss if she were to file a note of issue.

In opposition to this motion, the appellant's attorney pointed out that, in her bill of particulars, the plaintiff's attorney had, in fact, designated her residence address as her office address. The plaintiff's attorney later admitted that "it is difficult to recall why my home address appeared on that document". The appellant's attorney denied that anyone at his office agreed to withdraw the pending motion to dismiss if the plaintiff were to file a note of issue. He likewise denied that anyone in his office had agreed to adjourn that motion.

After allowing the plaintiff an opportunity to submit additional papers, the court (Ramirez, J.) granted the plaintiff's motion and restored the plaintiff's action to the calendar. We conclude that the plaintiff's attorney failed to establish a reasonable excuse for her default in complying with the "90-day notice" and responding to the defendant's motion to dismiss, and, accordingly, reverse.

A motion to dismiss a civil action for failure to prosecute should, in general, be granted "[w]here a party unreasonably neglects to proceed" (CPLR 3216[a]. This general rule is subject to certain statutory qualifications, one of which is that such a motion should not to be granted unless the movant "shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216[b][3]. In this case, a notice was sent by certified mail to an address designated by the plaintiff's attorney, on the bill of particulars, as her office, and was signed for by an unknown individual on December 31, 1987. The plaintiff's attorney claims that she notified the appellant's counsel of the relocation of her office in September 1987. Nevertheless, the fact remains that the plaintiff's attorney admittedly received the notice on March 16, 1988, at her residence. In light of the plaintiff's attorney's admission of its receipt, the service of the 90-day notice at her residence rather than at her office does not constitute a proper ground upon which to deny the appellant's motion (see, Balancio v. American Opt. Corp., 66 N.Y.2d 750, 497 N.Y.S.2d 360, 488 N.E.2d 106 [failure to serve notice by certified mail mere irregularity, insufficient by itself to warrant denial of motion to dismiss]; see also, Matter of Slocum v. Board of Educ., Binghamton City School Dist., 124 A.D.2d 269, 508 N.Y.S.2d 71; cf., Carlucci v. Carlucci, 140 A.D.2d 290, 527 N.Y.S.2d 540).

After receipt of the 90-day notice, the plaintiff's attorney made no effort to file a note of issue within the statutory time limit, and in fact made no effort to file a note of issue at all for over a year, until after a motion to dismiss had been made. Once the 90-day notice was served and received, "it was incumbent upon the plaintiff[s] to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period" (Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87, citing Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d...