3216 and mailing / personal knowledge

Bank of Am. v Guillaume, 2019 NY Slip Op 00845 [2d Dept. 2019]

“CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 502). Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of [the] demand,” and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand (see Vasquez v City of New York, 5 AD3d 672Kun Tiam Seow v Yu Dan Li, 1 AD3d 570, 571; 176-60 Union Turnpike v Klinger, 284 AD2d 380). Once the 90-day demand is received, “the plaintiff [is] required to comply with it by filing a note of issue or move before the default date to vacate the demand or extend the 90-day period” (Kushmakova v Meadow Park Rehabilitation & Health Care Ctr., LLC, 56 AD3d 434, 436; see CPLR 3216[c],[e]).

“Generally, proof that an item was properly mailed gives rise to a rebuttable [*2]presumption that the item was received by the addressee'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Matter of Rodriguez v Wing, 251 AD2d 335, 336). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680).

Contrary to the defendant’s contention, she failed to establish that the 90-day demand was sent by certified mail and received by the plaintiff or anyone acting on its behalf. In his affirmation in support of the defendant’s motion, the defendant’s counsel asserted that on July 28, 2017, his office sent a 90-day demand to plaintiff’s counsel by certified mail. However, the defendant’s counsel does not state that he had personal knowledge of the mailing of the 90-day demand or describe his office’s standard practices of mailing litigation papers to opposing counsel. Additionally, even though the certified mail receipt bears a postmark date of July 28, 2017, there was no evidence that the 90-day demand was mailed under that certified mail receipt number (see Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789, 790; New York & Presbyt. Hosp. Allstate Ins. Co., 29 AD3d at 547-548). Therefore, the defendant’s submissions were insufficient to raise a presumption that the plaintiff received the 90-day demand. Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute.

3216

Element E, LLC v Allyson Enters., Inc., 2018 NY Slip Op 08915 [2d Dept. 2018]

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021).

Here, the court order which purported to serve as a 90-day notice pursuant to CPLR 3216 “was defective in that it failed to state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion’ by the court to dismiss the action for failure to prosecute” (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3]; see Cadichon v Facelle, 18 NY3d at 235; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Wasif v Khan, 82 AD3d 1084, 1085). Moreover, the record contains no evidence that the court ever made a motion to dismiss, or that there was an “order” of the court dismissing the case (see Cadichon v Facelle, 18 NY3d at 236). As in Cadichon v Facelle (id.), “[i]t is evident from this record that the case was ministerially dismissed,” without the court having made a motion, and “without the entry of any formal order by the court dismissing the matter” (see US Bank N.A. v Saraceno, 147 AD3d at 1006). The procedural device of dismissing an action for failure to prosecute is a legislative creation, not a part of a court’s inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902), and, therefore, a court desiring to dismiss an action based upon the plaintiff’s failure to prosecute must follow the statutory preconditions under CPLR 3216.

Since the action was not properly dismissed pursuant to CPLR 3216, the Supreme Court should have granted that branch of the plaintiff’s motion which was to restore the action to the active calendar. To the extent that prior cases from this Court are inconsistent with the holding herein (see e.g. Stroll v Long Is. Jewish Med. Ctr., 151 AD3d 789Duranti v Dream Works Constr., Inc., 139 AD3d 1000, 1000; Bender v Autism Speaks, Inc., 139 AD3d 989Dai Mang Kim v Hwak Yung Kim, 118 AD3d 661, 661; Bhatti v Empire Realty Assoc., Inc., 101 AD3d 1066, 1067), henceforth they should no longer be followed.

Notably, the order purporting to be a 90-day demand was issued at a time when disclosure was complete, and when there was no evidence that the plaintiff had been dilatory in prosecuting the action. Notwithstanding the Supreme Court’s failure to issue a valid 90-day demand, the plaintiff demonstrated extreme lack of diligence in failing to file the note of issue, and in failing to prosecute the action after the case was ministerially dismissed. Given the plaintiff’s dilatory conduct, we grant that branch of the plaintiff’s motion which was for an extension of time to file a note of issue only to the extent of remitting the matter to the Supreme Court, Nassau County, for the issuance of a 90-day notice in accordance with CPLR 3216. Notably, effective January 1, 2015, the Legislature amended the statutory preconditions to dismissal under CPLR 3216, including a requirement that a court issuing the demand set forth the specific conduct constituting the neglect and that additional notice be given to the parties prior to dismissal of the action for unreasonable neglect to proceed (see CPLR 3216[a], [b][3]).

Bold is mine.

3216

JP Morgan Chase Bank v Faracco, 2018 NY Slip Op 08286 [2d Dept. 2018]

As the plaintiff correctly contends, the ministerial dismissal of the action was improper. Although the Supreme Court appears to have relied upon CPLR 3216 (b) as authority for its actions, the order dated April 11, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that noncompliance with its terms “will serve as a basis for a motion . . . for dismissal . . . for unreasonably neglecting to proceed” (CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020US Bank N.A. v Saraceno, 147 AD3d 1005). Moreover, the court never directed the parties to show cause as to why the action should not be dismissed, and did not enter a formal order of dismissal on notice to the parties as required by CPLR 3216(a) (see Cadichon v Facelle, 18 NY3d 230US Bank N.A. v Saraceno, 147 AD3d at 1006). Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial review, was erroneous (see Cadichon v Facelle, 18 NY3d at 236). In any event, dismissal was improper because the letter sent by the plaintiff’s counsel to the court, which provided a good faith explanation for the delay in moving for a judgment of foreclosure and sale, adequately and timely complied with the terms of the order dated April 11, 2013, and the plaintiff’s conduct did not prejudice the defendant and did not support any inference of an intent to abandon the action (see US Bank N.A. v Saraceno, 147 AD3d at 1006).

3216

Butler v Knights Collision Experts, Inc., 2018 NY Slip Op 06474 [1st Dept. 2018]

Plaintiffs failed to establish that defendants’ conduct during discovery was willful, contumacious or in bad faith (see Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]; Palmenta v Columbia Univ., 266 AD2d 90 [1st Dept 1999). At the time the motion was made, defendants were in violation of a single court order. Moreover, the court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought their motion, when discovery had been completed and the note of issue filed.

3216

Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822 [2d Dept 2018]

"CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with" (BankUnited v Kheyfets, 150 AD3d 948, 949; see CPLR 3216[b][3]). As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) "unless a written demand is served upon the party against whom such relief is sought' in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'" (Cadichon v Facelle, 18 NY3d 230, 235, quoting CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020, 1021). While a conditional order of dismissal may have "the same effect as a valid 90-day notice pursuant to CPLR 3216" (Byers v Winthrop Univ. Hosp., 100 AD3d 817, 818; see Griffith v Wray, 109 AD3d 512, 513; Stallone v Richard, 95 AD3d 875, 876), the conditional order here "was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute" (Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021, quoting CPLR 3216[b][3] [emphasis added]). Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was "no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal," nor was there "evidence that the order was ever properly served upon the plaintiff" (BankUnited v Kheyfets, 150 AD3d at 949). In the absence of proper notice, "the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal" (id.). Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review (see Cadichon v Facelle, 18 NY3d at 235-236; Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d at 1021; US Bank N.A. v Saraceno, 147 AD3d 1005, 1006; Armstrong v B.R. Fries & Assoc., Inc., 95 AD3d 697, 698). Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the order dated October 3, 2013, and to restore the action to the active calendar.

3216

Goetz v Public Serv. Truck Renting, Inc., 2018 NY Slip Op 04534 [2d Dept 2018]

"A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met" (Patel v MBG Dev., Inc., 41 AD3d 682, 682; see Baczkowski v Collins Constr. Co.,89 NY2d 499, 503). "Effective January 1, 2015, the Legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216" (Rhodehouse v CVS Pharm., Inc., 151 AD3d 771, 772-773). One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, "the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation" (CPLR 3216[b][3]). Here, the compliance conference order did not set forth any specific conduct constituting neglect by the plaintiff. Accordingly, since one of the statutory preconditions to dismissal was not met, the court should not have directed dismissal of the complaint pursuant to CPLR 3216 (see Rhodehouse v CVS Pharm., Inc., 151 AD3d at 772-773).

CPLR 3012; 3216

CPLR 3012

CPLR 3216

Dutchess Truck Repair, Inc. v Boyce, 2014 NY Slip Op 05768 [2nd Dept. 2014]

"Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR 3012[d]; see EHS Quickstops Corp. v [*2]GRJH, Inc., 112 AD3d 577, 578). Similarly, a court may relieve a party from an order on the basis of "excusable default, if such motion is made within one year after service of a copy of the . . . order with written notice of its entry upon the moving party" (CPLR 5015[a][1]). However, relief from a default is proper only where the party seeking relief demonstrates a reasonable excuse for the default and a potentially meritorious defense (see Farhadi v Qureshi, 105 AD3d 990, 991; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 725).

Here, even assuming that the plaintiffs' excuse of law office failure was sufficient to excuse their failure to serve a timely reply to the counterclaim of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc. (hereinafter collectively the defendants) (see Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, 1023; CPLR 2005), the Supreme Court properly declined to vacate their default and to compel acceptance of their reply. The record establishes that, after the defendants' rejection of the plaintiffs' reply to the counterclaim and the court's finding that they were in default, the plaintiffs waited nearly two years before moving to vacate their default and to compel the defendants to accept their reply. Because the plaintiffs proffered no reasonable excuse for their failure to promptly seek relief, the court providently exercised its discretion in denying those

branches of the plaintiffs' motion (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 226; Karalis v New Dimensions HR, Inc., 105 AD3d 707, 708).

"Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms" (CPLR 3216[a]). Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise the party upon whom such notice was served that failure to do so may result in dismissal of the action (see CPLR 3216[b][3]). Pursuant to 22 NYCRR 202.21(a), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669).

On March 26, 2012, the Supreme Court, on its own initiative, and based upon the plaintiffs' repeated failure to file a compliant note of issue as directed, issued a 90-day notice requiring the plaintiffs to produce all outstanding discovery and file a note of issue. Although the plaintiffs filed a note of issue on June 9, 2012, the accompanying certificate of readiness, which stated that an appeal was pending with respect to discovery issues, did not comply with 22 NYCRR 202.21(a) and (b) (see Furrukh v Forest Hills Hosp., 107 AD3d at 669; Brown v Astoria Fed. Sav., 51 AD3d 961, 962; Blackwell v Long Is. Coll. Hosp., 303 AD2d 615, 615-616). The plaintiffs also failed to demonstrate that the complaint should not be dismissed based upon their failure to prosecute the action by proffering "a justifiable excuse for the delay and a meritorious cause of action" (Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616; see Sharpe v Osorio, 21 AD3d 467, 468). Accordingly, the court properly granted that branch of the defendants' motion which was to strike the note of issue and, upon so doing, providently exercised its discretion granting that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3216 for failure to prosecute (see Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616; Perez v Long Is. Jewish-Hillside Med. Ctr., 173 AD2d 530, 530-531).

Bennett v Patel Catskills, LLC, 2014 NY Slip Op 05616 [2nd Dept. 2014]

The process server's affidavit of service created a rebuttable presumption that the plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State (see CPLR 311-a[a]; Limited Liability Company Law § 303; Kolonkowski v Daily News, L.P., 94 AD3d 704, 705; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164; Trini Realty Corp. v Fulton Ctr. LLC, 53 AD3d 479). In opposition, the defendant denied receipt of the summons and complaint. The fact that the summons and complaint, which had been sent by certified mail, return receipt requested, to the address on file with the New York Secretary of State, had been returned to the Secretary of State as "unclaimed," raised a triable issue of fact as to whether the defendant received notice of the certified mail sent to it by the Secretary of State, and the matter must be remitted for a hearing and new determination of that issue and of the motion and cross motion (see Avila v Distinctive Dev. Co., LLC, ___ AD3d ___ [decided herewith]; Henniger v L.B.X. Excavating, 176 AD2d 917, 918; Rodriguez v Bridge Realty, 155 AD2d 271, 272; Rifenburg v Liffiton Homes, 107 AD2d 1015, 1016).

Contrary to the defendant's contention, the plaintiffs did not waive the issue of the late service of the answer and the alleged default when they failed to reject the answer in a timely manner. Since the plaintiffs notified the defendant that it was in default prior to service of an answer and promptly moved for leave to enter a default judgment after receiving the answer, the plaintiffs could not be deemed to have thereafter waived the issue of late service and the alleged default (see Hosten v Oladapo, 44 AD3d 1006, 1007; Katz v Perl, 22 AD3d 806, 807).

CPLR 3216 [need new notice after NOT/NOI is vacated or stricken]

CPLR 3216

Diemer v Eben Ezer Med. Assoc., 2014 NY Slip Op 05832 [2nd Dept. 2014]

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action. As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b) (see Chase v Scavuzzo, 87 NY2d 228, 233; Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17, 20).

Here, the defendants Select Physicians, P.C., and Daniel Reinharth (hereinafter together the defendants) failed to serve a 90-day demand pursuant to CPLR 3216 after the last note of issue was vacated on September 8, 2011, and the action reverted to its pre-note of issue status (see Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045, 1046; Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661, 661-662; Andre v Bonetto Realty Corp., 32 AD3d 973, 974-975; Travis v Cuff, 28 AD3d 749, 750). Contrary to the defendants' contention, the certification orders issued by the Supreme Court, directing the plaintiffs to file a note of issue within 90 days, failed to satisfy CPLR 3216, as each of these orders predated vacatur of the note of issue on September 8, 2011. Further, the plaintiffs complied with each of these certification orders when they served and filed a note of issue within the respective 90-day periods (see CPLR 3216[c]; Darty v Hempstead Vil. Hous. Assoc., 95 AD3d 1161, 1162). Accordingly, the defendants' motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them should have been denied (see Montalvo v Mumpus Restorations, Inc., 110 AD3d at 1046; Sellitto v Women's Health Care Specialists, 58 AD3d 828, 829; Travis v Cuff, 28 AD3d at 750).

CPLR 3212(f); 3126; staged accident

CPLR 3212(f)

CPLR 3126

Johnson v Richardson, 2014 NY Slip Op 05956 [2nd Dept. 2014]

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (James v Aircraft Serv. Intl. Group, 84 AD3d 1026, 1027 [internal quotation marks omitted]; see CPLR 3212[f]; Wesolowski v St. Francis Hosp., 108 AD3d 525, 526; Jones v American Commerce Ins. Co., 92 AD3d 844, 845; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793; see Wesolowski v St. Francis Hosp., 108 AD3d at 526; James v Aircraft Serv. Intl. Group, 84 AD3d at 1027).

Here, the plaintiffs' motion for leave to reargue was made prior to the parties conducting depositions. U-Haul asserts that the accident was "staged" by the plaintiffs and Richardson, and, thus, U-Haul was not liable for negligence. Since U-Haul had no personal knowledge of the relevant facts, it should be afforded the opportunity to conduct discovery, including depositions of the plaintiffs and the defendant Richardson. Accordingly, it was premature to award summary judgment at this stage of the action (see Wesolowski v St. Francis Hosp., 108 AD3d at 526; Jones v American Commerce Ins. Co., 92 AD3d at 845; Gardner v Cason, Inc., 82 AD3d 930, 931-932; Adler v City of New York, 52 AD3d 549, 549-550).

 

a 90 day notice that wasnt

CPLR 3216

Kapnisakis v Woo, 2014 NY Slip Op 00967 [2nd Dept. 2014]

However, the defendants did not move to hold the plaintiff in default of those provisions. Moreover, the order dated August 6, 2010, was not a valid 90-day notice, since it directed the filing of a note of issue in less than 90 days (see Gladman v Messuri, 71 AD3d 827, 828). Therefore, the plaintiff's failure to file a note of issue was of no consequence.

On November 12, 2010, the action was marked "Disposed" by the clerk. Within one year, on November 10, 2011, the plaintiff moved, in effect, to restore the action to active status, and annexed to that motion his opposition papers to the defendants' motion for summary judgment. In the order appealed from, the Supreme Court denied the motion.

Since no note of issue was filed in this case, this action was not on the trial calendar, and CPLR 3404 did not apply (see Khaolaead v Leisure Video, 18 AD3d 820; Lopez v Imperial Delivery Serv., 282 AD2d 190). Accordingly, there was no basis for denying the motion to restore (see Hemberger v Jamaica Hosp., 306 AD2d 244).

The plaintiff was never adjudicated in default of the order dated August 6, 2010, and he has now complied with all binding provisions of that order, including filing papers in opposition to the defendants' motion for summary judgment. Under the particular circumstances of this case, including the current procedural posture of the action, a determination of the issues on the merits, in keeping with the strong public policy in favor of resolving cases on the merits, is warranted (see Bunch v Dollar Budget, Inc., 12 AD3d 391).

Emphasis mine.