Civil Court of the City of New York, New York County, April 30, 2018

Salvatore J. Russo, General Counsel, Health and Hospitals Corporation, for defendant.

Danette Erinna, plaintiff pro se.

Defendant Ferdinand Ofodile, M.D., by counsel, moves to dismiss the complaint of unrepresented plaintiff Danette Erinna pursuant to CPLR 3216 for failure to prosecute.^[FN1] For the reasons below, the motion is denied and the matter shall be placed on the calendar for conference on July 18, 2018.^[FN2]

On April 8, 2015, the Honorable Cheree A. Buggs ordered that this action be transferred from Queens County Civil Court (CV-002686/15-QU) to New York County Civil Court (defendant's exhibit C). According to the court's records, the Clerk of the Court transferred the file on May 1, 2015. On May 21, 2015, and twice on June 1, 2015, court records indicate three "phone or in person communications," the participants, contents, and results of which are unknown. The action then [*2]lay dormant until March 16, 2017, when defendant served a CPLR 3216 90-day notice upon plaintiff via certified mail (defendant's exhibit D). After the notice went unanswered, defendant filed this motion.

Defendant argues that dismissal is appropriate because the requirements of CPLR 3216 have been satisfied: joinder, a 90-day notice, and plaintiff's failure to file a note of issue. In opposition, plaintiff provides an overview of her claim and asserts that CPLR 3216 is applicable only in Supreme Court.

CPLR 3216 allows dismissal for failure to prosecute: (1) after the issue is joined; (2) one year after joinder or six months after a preliminary conference order, whichever is later; (3) a written, 90-day demand; and (4) a party's failure to respond to{**59 Misc 3d at 725} said demand. That these elements were satisfied by defendant are not in dispute, but CPLR 3216 (e) also provides that upon a party's failure to serve and file a note of issue within the prescribed 90-day period, "the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action" (emphasis added).

With respect to plaintiff's justifiable excuse for delay, a litigant's decision to proceed without counsel does not generally confer any greater rights than those afforded to other litigants (see e.g. Mirzoeff v Nagar, 52 AD3d 789 [2d Dept 2008]; Horst v Brown, 72 AD3d 434, 435 [1st Dept 2010]; Matter of Stephen W. v Christina X., 80 AD3d 1083, 1084 [3d Dept 2011]). However, CCA 1301 explicitly treats unrepresented and represented parties disparately with respect to trial readiness by requiring the Clerk of the Court, not the parties, to file a notice of trial when at least one party is unrepresented:

"Upon joinder of issue the clerk shall place the case upon a general calendar. Where any party appears in person, the clerk shall fix a date for trial not less than five nor more than fifteen days after joinder of issue, and shall immediately notify all the parties by mail of such date. If any of the parties has appeared by attorney, the clerk shall notify the attorney. Where all parties appear by attorney any party may serve a notice on the others fixing a date for trial not less than five nor more than eight days after the service of such notice, and shall file such notice, with proof of service thereof, with the clerk, who shall thereupon place the case on the calendar for trial. The case shall be set down for trial as provided for by the rules."

CCA 1301 conflicts with the CPLR which, as relevant here, does not differentiate between unrepresented and represented parties. Specifically, CPLR 3402 (a) provides that "any party may place a case upon the calendar by filing . . . a note of issue . . . . The clerk shall enter the case upon the calendar as of the date of the filing of the note of issue" (see also 22 NYCRR 202.21 [mandating contents of note of issue]). To the extent that CCA 1301 explicitly prescribes different procedures for trial readiness based on the representation status of the parties, it conflicts with CPLR 3402 and the CCA controls (CCA 2102 ["The CPLR and other provisions of law relating to practice and procudure (sic) in the supreme court . . . shall apply {**59 Misc 3d at 726}in this court as far as the same can be made applicable and are not in conflict with this act" (emphasis added)]). CCA 1301 represents the legislature's recognition of the reality that Civil Court practice involves many unrepresented litigants (see Panicker v Northfield Sav. Bank, 12 Misc 3d 1153[A], 2006 NY Slip Op 50880[U], *6 [Civ Ct, Richmond County 2006] [finding attorney's summary [*3]judgment motion timely where CPLR 3212 120-day deadline is inapplicable to civil court under the reasoning that it would be unfair to treat unrepresented and represented litigants differently]).

Accordingly, because CCA 1301 requires the Clerk of the Court to calendar the matter for trial rather than requiring unrepresented litigants to file a notice of trial, it would have been unjustified, in this instance, to require plaintiff to file a notice of trial in response to defendant's 90-day demand. Thus, plaintiff has satisfied CPLR 3216 (e) by demonstrating a justifiable excuse for a delayed response. Because joinder in this action occurred in Queens County, there was no occasion for the New York County Clerk, as required by CCA 1301, to "fix a date for trial" except upon transfer of the file which, through no fault of plaintiff, did not occur. Though defendant served a 90-day notice upon plaintiff, plaintiff could not have reasonably been expected to file a notice of trial when the CCA required the Clerk to have done so.^[FN3] With respect to plaintiff's meritorious cause of action, she has continued to allege pain and suffering stemming from the allegations in her complaint.

Additionally, 22 NYCRR 208.1 (b) provides that, "for good cause shown, and in the interests of justice, the court in an action or proceeding may waive [court rules] unless prohibited from doing so by statute or by a rule of the Chief Judge." Given the unusual procedural posture in this action, denying dismissal and placing this matter on the calendar is the more appropriate course of action.

Accordingly, it is hereby ordered that defendant's motion to dismiss is denied in its entirety; and it is further ordered that the Clerk of the Court shall send a copy of this decision to all parties forthwith.