|General Assur. Co. v Lachmenar|
|2014 NY Slip Op 51722(U) [45 Misc 3d 134(A)]|
|Decided on November 25, 2014|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 1, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $17,867.98 and implicitly dismissed defendants' counterclaim. The appeal from the judgment brings up for review (1) so much of an order of the same court (Maureen A. Healy, J.) entered June 21, 2011 as denied the branch of defendants' motion seeking to vacate the notice of trial and strike the action from the trial calendar, and (2) an order of the same court (Maureen A. Healy, J.) dated October 20, 2011, which, upon reargument, adhered to the June 21, 2011 determination.
ORDERED that the judgment is affirmed, without costs.
In 2003, plaintiff commenced this subrogation action to recover the sum of $17,867.98 for property damage to its subrogor's vehicle as a result of an accident which occurred on October 4, 2002. The complaint alleges that, on that date, an accident occurred with a vehicle owned by defendant Sarojnie Lachmenar and operated by defendant Ravi Sawh, which accident was due to defendants' negligence "in the ownership, operation, maintenance and control of their vehicle." In a verified answer, defendants generally denied the allegations of the complaint and, in addition to asserting affirmative defenses, interposed a counterclaim alleging that the accident was the result of the negligence and recklessness of the operator of plaintiff's subrogor's vehicle, resulting in damage to defendants' vehicle. Plaintiff, in a reply, generally denied the allegations of the counterclaim and asserted various affirmative defenses. In addition, plaintiff served discovery demands as well as a demand for a bill of particulars on the counterclaim. The bill of particulars and the response to the discovery demands were served on or about September 22, 2003.
There was no further activity in the case until August 17, 2009, when plaintiff's counsel wrote to Ira M. Scharaga, Esq., defense counsel, to advise him that the bill of particulars and response to discovery demands were not complete. When no response was forthcoming, plaintiff made a preclusion motion, which was granted on defendants' default by order entered November 4, 2009 (Cheree A. Buggs, J.). Plaintiff filed a notice of trial and certificate of readiness on November 5, 2009.
Approximately 13 months later, in December 2010, defendants, insofar as is relevant to this appeal, moved, in the alternative, to dismiss the matter with prejudice, based on laches, or to vacate the notice of trial and strike the action from the trial calendar. Anna Lisa Bonventre, Esq., of counsel to Mr. Scharaga, stated, in a supporting affirmation, that the New York State Unified Court System E-Courts public website had indicated that the matter had been disposed of on June 2, 2007, and that, consequently, plaintiff had an obligation to move to restore the action to the calendar. Moreover, the action should be barred by laches because plaintiff had failed to [*2]prosecute its case and could not "resurrect" the case by filing a notice of trial which had not been served on defense counsel at the proper office address. Plaintiff's counsel, in opposition, noted that she had had frequent telephone contacts with Mr. Scharaga throughout 2010, and that he had appeared at a pretrial conference on September 7, 2010, and had been granted an adjournment to January 5, 2011, in order for him to speak to his clients.
By order entered June 21, 2011, the Civil Court (Maureen A. Healy, J.) denied as untimely the branch of defendants' motion seeking to vacate the notice of trial and strike the action from the trial calendar, as defendants had not moved for such relief within 20 days after service of the notice (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]). The Civil Court noted that, although Ms. Bonventre had claimed that Mr. Scharaga had not been properly served with the notice of trial and certificate of readiness, Ms. Bonventre had no personal knowledge of this fact, and had made her assertions based upon her review of the Civil Court's website and case file, as well as on the file previously maintained by Mr. Scharaga. She had offered no rebuttal to plaintiff's counsel's assertions regarding the numerous phone calls between plaintiff's counsel and Mr. Scharaga from the time of the alleged service of the notice of trial until the time the motion was made.
Just prior to the next scheduled trial date, defendants moved, in early July 2011, for leave to renew and/or reargue the branch of their prior motion which sought to vacate the notice of trial and strike the action from the trial calendar. Plaintiff opposed the motion. By order dated October 20, 2011, the Civil Court (Maureen A. Healy, J.), in effect, granted the branch of defendants' motion seeking leave to reargue and, upon reargument, adhered to its original determination, noting that defendants had still not offered an affidavit from a person with personal knowledge of the underlying facts and had not offered an explanation as to why such an affidavit had not been submitted.
On March 2, 2012, a nonjury trial was held at which Tino Giresi, who was operating plaintiff's subrogor's vehicle when the accident occurred, testified regarding the circumstances of the accident which had caused damage to plaintiff's subrogor's vehicle. During the course of his testimony, the police accident report was shown to him to refresh his recollection regarding the names of the owner and operator of defendants' vehicle. Plaintiff also called as witnesses plaintiff's material damage director, who had reviewed photographs of the subrogor's damaged vehicle, as well as an estimate and an evaluation of the loss, prior to approving payment of the subrogor's claim, and the insured, who testified that he had filed a claim for damage with plaintiff and that he had received payment. A judgment awarding plaintiff the principal sum of $17,867.98, and implicitly dismissing defendants' counterclaim, was entered on May 1, 2012.
Although defendants argue that the action should have been dismissed based on the doctrine of laches due to plaintiff's inordinate and unexplained delay in prosecuting it, this argument is without merit. The courts do not possess the inherent power to dismiss an action for general delay where a plaintiff has not been served with a 90-day demand to resume prosecution and to serve and file a notice of trial (see CPLR 3216; Chase v Scavuzzo, 87 NY2d 228, 233 ; Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 ). Defendants did not demonstrate that they had complied with CPLR 3216 (b) by serving such a demand. Moreover, although the action had been marked "disposed" on the E-Courts public website, since the action has never been properly dismissed, "there was no need for a motion to restore" (Arroyo v Board of Educ. of City of NY, 110 AD3d at 21).
With respect to defendants' contention that plaintiff failed to meet its burden of proof at trial, we find that there was sufficient evidence to establish both liability and damages. We have considered the issues raised by defendants on appeal regarding alleged improprieties in the admissibility of evidence at trial and find that they are either not preserved for appellate review or lack merit.
Accordingly, the judgment is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.