A tricky case (CPLR R. 3216)

CPLR R. 3216
Want of prosecution

Cadichon v Facelle, 2010 NY Slip Op 02058 (App. Div., 1st, 2010)

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand to serve and file a note of issue and a meritorious cause of action (Walker v City of New York, 46 AD3d 278 [2007]). Plaintiffs failed to offer a reasonable excuse for their failure to file the note of issue. Indeed, while plaintiffs contended that defendants' noncompliance with their discovery obligations was to blame, and that such noncompliance was preventing them from filing a note of issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124, 3126)" (McDonald v Montefiore Med. Ctr., 60 AD3d 547, 547 [2009]).

While we do not disagree with the dissent's conclusion that some of the delay was occasioned by defendant, our decision rests on the record and controlling law which required plaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to either seek an extension to comply with the 90-day notice, move to vacate the same (Brady v Benenson Capital Co., 2 AD3d 382, 382 [2003], lv denied 2 NY3d 702 [2004]) or file a note of issue [*2](CPLR 3216[b][3]). Plaintiffs did none of these things and their case was thus properly dismissed. Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed to satisfy with their first motion, and which they were unable to cure with the their second motion.

Plaintiffs also impermissibly addressed the merits of their action for the first time on reply (Migdol v City of New York, 291 AD2d 201, 201 [2002]; Lumbermens Mut. Cas. Co. v Morse Shoe Company, 218 AD2d 624, 625-626 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992].

The excuse of law office failure offered on the motion to reargue and renew did not constitute a reasonable excuse (Walker, 46 AD3d at 280-281). Further, plaintiffs failed to explain why they failed to present the excuse of law office failure on the original motion.

Remember the recent amendment to CPLR 205.  Why doesn't it apply here?  The dissent explains.

On the motion to renew, counsel explained that the conference resulting in the May 3, 2007 so-ordered stipulation was handled by an "of counsel" attorney, and thus, the December 27, 2007 deadline set by the court for the filing of the note of issue was not entered into the firm's calendar system as would ordinarily be done. Counsel further stated that had he known about the deadline, he would have moved for an extension of time to file the note of issue and/or to strike defendants' answers based on defendants' failure to comply with discovery. I would hold that this failure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d 481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany & Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitments forgot deadline]), particularly given defendants' delays and plaintiffs' inability, as a direct result thereof, to certify that discovery was complete. While this case was decided before the effective date of the amendment to CPLR 205, which provides that an action may not be dismissed under CPLR 3216 unless the judge sets forth "on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation," it is not without significance that plaintiffs did not engage in a pattern of neglect.

While I agree with the motion court that the better practice would have
been for plaintiffs to have made a motion to compel discovery or for an
extension of time to file the note of issue, the failure to take these
steps should not result in dismissal of a meritorious cause of action.
It is [*4]the long established public
policy of this State to decide cases on their merits (see Kaufman v
, 36 AD3d at 483).

The bold is mine.

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