Opinion
2003-1055 K C, 2003-1055 K C
Decided July 7, 2005.
Appeal by plaintiff from orders of the Civil Court, Kings County (A. Schack, J.), respectively entered June 20, 2003, granting defendants' motion to dismiss the complaint and November 13, 2003, denying plaintiff's motion to, in effect, vacate the June order.
Appeal from order entered June 20, 2003 dismissed.
Before: PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
Order entered November 13, 2003 modified by denying plaintiff's motion to vacate the order entered June 20, 2003 without prejudice to renewal upon proper papers; as so modified, affirmed without costs.
The case at bar was transferred to the Civil Court in 1998 pursuant to CPLR 325(d). By notice of motion returnable in March 2003, defendants moved to dismiss the complaint pursuant to CPLR 3404, "as abandoned by plaintiff." It is uncontroverted that plaintiff did not submit opposition papers to said motion, which the court below granted in June 2003. Since the record on appeal contains no affidavits, sworn testimony or other competent evidence in opposition to said motion ( see e.g., Fox v. T.B.S.D., Inc., 278 AD2d 612; Kaiser v. J S Realty, 173 AD2d 920), plaintiff's actions were the same as a defaulting party who acquiesced in the order and, therefore, is not aggrieved by it ( see Vanderveer Apts. v. Moore, 2 Misc 3d 132[A], 2004 NY Slip Op 50123[U] [App Term, 2d 11th Jud Dists]; Scott v. Mellen, NYLJ, Dec. 14, 2000 [App Term, 2d 11th Jud Dists]). Inasmuch as no appeal lies from an order entered upon default, plaintiff's appeal from the June order is dismissed ( see Flake v. Van Wagenen, 54 NY 25; Landmark Aviation v. De Marmels, 63 AD2d 964; 10 Carmody Wait 2d § 70:32, at 267).
It is well settled that CPLR 3404 is inapplicable to Civil Court cases ( see LoFredo v. CMC Occupational Health Servs., 189 Misc 2d 781). Generally, in Civil Court when issue has been joined for at least one year, a motion to dismiss for want of prosecution should be made after the plaintiff fails to comply with the defendant's demand to resume prosecution and file a notice of trial within 90 days ( see CPLR 3216; cf. Wilson v. Boerum Auto Serv., 24 AD2d 1029). Plaintiff's November 2003 motion sought, in effect, vacatur of the June 2003 default order. A review of the record indicates that plaintiff established a reasonable excuse for her default in opposing defendants' motion to dismiss since she had sought an adjournment of said motion, to which defense counsel agreed, but which the court below refused to grant. Plaintiff, however, is not entitled to vacatur of the June order since she did not submit an affidavit establishing a meritorious claim (CPLR 5015). In view of the foregoing, plaintiff's motion to vacate is denied without prejudice to renewal upon the submission of an affidavit of merit.
Golia and Rios, JJ., concur.
Patterson, J.P., concurs in part and dissents in part in a separate memorandum.
The appeal from the June 20, 2003 order must be dismissed for the reasons set forth in the majority. However, inasmuch as this case has been pending in the Civil Court since 1998, and plaintiff has failed to diligently prosecute the action, I find that the court below properly denied her motion to vacate the June order. Accordingly, the order entered November 13, 2003 should be affirmed without granting plaintiff leave to renew her motion to vacate.
Plaintiff commenced the instant personal injury action in Supreme Court in August 1997. On October 22, 1998, the case was marked off the active calendar in Supreme Court and transferred to Civil Court. The case remained inactive in Civil Court until March 2003, almost five years later, when defendants moved pursuant to CPLR 3404 to dismiss the case as abandoned. Plaintiff submitted no opposition to the motion and the court, by order dated June 20, 2003, granted "the motion to dismiss for failure to prosecute due to plaintiff's abandonment of [the] case." The court noted that it denied plaintiff's motion for a second adjournment after oral argument and that the case "last appeared on the calendar 5 years ago."
In November 2003, plaintiff moved to "renew and reargue" the order. Plaintiff maintained, among other things, that the case was not inactive and since no notice of trial had been filed, defendants should have served a 90-day demand pursuant to CPLR 3216 before seeking dismissal. Denominating plaintiff's motion as one to reargue, the court denied the motion as untimely on November 13, 2003.
Plaintiff now appeals, claiming that the court below had no authority to dismiss the action for want of prosecution. I am constrained to agree, notwithstanding plaintiff's lengthy delay.
The June 20, 2003 Order granting Defendants' Motion to Dismiss
Initially, I disagree with the majority's treatment of the June 20, 2003 order as a dismissal on default. Although plaintiff failed to appear on the motion, the court below, in my view, dismissed the action on the merits of defendants' motion. The court stated that defendants' motion to dismiss "for failure to prosecute due to plaintiff's abandonment of [the] case [is] granted." The court further noted that the case last appeared on the calendar five years earlier. If, as the majority contends, the motion were granted on default, then the court below presumably would have noted the default on the record ( see 22 NYCRR 208.14 [b] [court may "note the default on the record" and enter an order dismissing the complaint]; cf. Chowdhury v. Phillips, 306 AD2d 51, 53 [1st Dept. 2003] [no indication that default pursuant to 22 NYCRR 202.27 was the basis for the court's dismissal "as neither defendant raised this rule as a ground for dismissal and the IAS court's decision () never mentioned it"]).
The fact that the court did not dismiss the action on default is further supported by plaintiff's subsequent motion. Instead of moving to vacate a "default," plaintiff moved to renew and reargue the court's order, asserting that the case was not inactive and that defendants should have served a 90-day demand prior to seeking dismissal for want of prosecution. In denying plaintiff's motion, the court clearly treated the motion as one to reargue and denied it as untimely. The court's language in both the June 20 and November 13 orders, together with the fact that plaintiff moved to reargue and renew the June 20 order, confirm that the court's June 20 dismissal was not on default. In my opinion, because the June 20 dismissal was not on default, it is an appealable order and the court's subsequent order denying reargument is not.
Defendants Erroneously Moved to Dismiss Under CPLR 3404
Having determined that the June 20, 2003 dismissal is appealable, I conclude that defendants erroneously moved to dismiss pursuant to CPLR 3404. CPLR 3404 authorizes automatic dismissal for want of prosecution in Supreme Court and County Court cases, not Civil Court cases ( see LoFredo v. CMC Occupational Health Servs., 189 Misc 2d 781). Here, once the case had been transferred to Civil Court, Supreme Court no longer retained jurisdiction over the matter and the case was governed by Civil Court rules ( Mather v. Ginsroe, Inc., 45 Misc 2d 674). Thus, defendants could not avail themselves of CPLR 3404. Instead, since no notice of trial had been filed, defendants should have served a 90-day demand pursuant to CPLR 3216 before moving to dismiss the action ( see DeCook v. Bruno G.M.C. Truck Sales Corp., 193 Misc 2d 572). Because defendants failed to do so, the court below erred in granting the motion ( see LoFredo v. CMC Occupational Health Servs., 189 Misc 2d at 782 [dismissal entered pursuant to CPLR 3404 was ineffective in Civil Court]).
Only three calendar controls are available in Civil Court cases: (1) a dismissal after service of a 90-day demand pursuant to CPLR 3216, (2) a default pursuant to 22 NYCRR 208.14 (b), and (3) restoration of a case pursuant to 22 NYCRR 208.14 (c). As noted, neither a dismissal pursuant to CPLR 3216, nor a dismissal on default are applicable in this case. Also inapplicable is the provision governing restoration of a case that has been stricken from the calendar.
22 NYCRR 208.14 (c) authorizes restoration of a case that has been stricken from the calendar for more than one year upon a plaintiff's motion to restore, provided that plaintiff, among other things, demonstrates a reasonable excuse for the delay and a meritorious cause of action ( see Hercules v. City of New York, 5 Misc 3d 129[A], 2004 NY Slip Op 51282[U] [App Term, 2d 11th Jud Dists]; Rodriguez v. City of New York, 3 Misc 3d 136[A], 2004 NY Slip Op 50501[U] [App Term, 2d 11th Jud Dists]; Feldman v. Allstate Insurance Co., 192 Misc 2d 43, 44 [App Term, 2d 11th Jud Dists 2002). Unfortunately, nothing in the statute authorizes dismissal of a case that has been marked off the calendar for more than one year. Instead, Section 208.14 (c) is simply a mechanism by which a party may restore an action to the calendar. Here, plaintiff never moved to restore the case. In the absence of such a motion, the case simply remained marked off the calendar and no authority existed to dismiss it.
While I recognize that such a holding could potentially allow a case to remain marked off indefinitely until a 90-day demand is served, it is for the Legislature, not the courts, to resolve this dilemma. Other than a dismissal on default, the Legislature has left only CPLR 3216 as a means of obtaining a dismissal for want of prosecution in Civil Court cases. Having failed to serve a 90-day demand pursuant to CPLR 3216, defendants had no basis for seeking dismissal.
Accordingly, I would reverse the June 20, 2003 order granting defendants' motion to dismiss, and deny said motion, and I would dismiss the appeal from the November 13, 2003 order denying plaintiff's motion to renew and reargue.