Supreme Court, Nassau County, June 28, 2018

Levine and Wiss, West Hempstead (Patrick J. McGrath of counsel), for plaintiff.

Kaufman Borgeest & Ryan LLP, Valhalla (Julie Tribble of counsel), for AVR Massapequa LLC, defendant.

Plaintiff moves for an order restoring her action to the court's active case calendar, and permitting her to file a note of issue to place this action on the trial calendar.

Defendant AVR Massapequa LLC cross-moves for an order pursuant to CPLR 3216, denying plaintiff's motion and dismissing the complaint asserted against it with prejudice, on the ground that plaintiff failed to prosecute her action.

The procedural circumstances presented in this case are an illustration of the possible disastrous consequences when attorneys for plaintiffs misinterpret or do not follow the applicable civil practice rules, court rules and appellate precedent of our arguably confusing and sometimes contradictory "unified" court system.

This is an action to recover damages for the serious personal injuries sustained by the plaintiff on April 6, 2011, when she allegedly tripped and fell over a hole in the floor of the premises where the plaintiff was employed. After many conferences, the case was finally certified by the parties' counsel as ready for trial pursuant to a standard Nassau County Supreme Court certification order dated June 1, 2016 (Brandveen, J.). Each attorney acknowledged receiving the order, which directed the plaintiff "to file a note of issue within 90 days. If plaintiff does not file a note of issue within 90 days this action may be dismissed (CPLR 3216)." (Plaintiff's attorney claimed that the certification order stated that the note of issue was required to be filed by Aug. 30, 2016, when in fact "8/30" was handwritten in by the courtroom clerk.) When the Nassau Supreme Court's computer dashboard was alerted that the note of issue was not timely filed by September 1, 2016, the Differentiated Case{**60 Misc 3d at 827} Management office within the court sent a request to the clerk of IAS Part 35 to administratively purge the case from the undersigned's inventory; the case was purged, without notice to the plaintiff, on October 28, 2016. There was no further activity in this action until the plaintiff's attorney served plaintiff's motion on October 27, 2017. None of the defendants ever served demands, pursuant to CPLR 3216, that the plaintiff file her note of issue or face the possible consequence of the court dismissing the complaint.

In support of her motion, the plaintiff submitted the pleadings, the verified bill of particulars and an affidavit attesting to the merits of her claims. No excuse was proffered by the plaintiff or her counsel for not filing the note of issue timely. Instead, plaintiff's attorney relies on three legal arguments in his moving and reply affirmations: (1) pursuant to the Appellate Division, Second Department's holding in Arroyo v Board of Educ. of City of N.Y. (110 AD3d 17, 21 [2013]), when a case is "marked off" or marked "disposed" by the clerk of the court, prior to filing a note of issue, that act is not a proper dismissal of a case and "mean[s] nothing"; (2) the plaintiff moved to restore her case to active status before the expiration of the one year period set forth in CPLR [*2]3404 for the dismissal of abandoned cases ("A case in the supreme court . . . marked 'off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute"); (3) cross-movant defendant AVR Massapequa LLC, and this court, did not comply with CPLR 3216, which requires in pertinent part that

"(a) [w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution therof 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, with notice to the parties, may dismiss the party's pleading on terms. . . .

"(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: . . .

"(3) The court or party seeking such relief, as the{**60 Misc 3d at 828} case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating 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 or her for unreasonably neglecting to proceed. Where the written demand is served by the court, 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."

In opposition to the motion and in support of its cross motion to dismiss the complaint pursuant to CPLR 3216, defendant AVR Massapequa LLC's attorney omitted from his recitation of CPLR 3216 the 2015 amendment to the statute stated above in subdivision (b) (3), but adamantly insists, based upon Second Department precedent (see Stallone v Richard, 95 AD3d 875, 876 [2012]), that the June 1 certification order served as a CPLR 3216 demand notice that the plaintiff's failure to timely file the note of issue within 90 days of that order could result in the dismissal of the action. Consequently, cross-movant's counsel argues, the plaintiff was required pursuant to CPLR 3216 (e) to demonstrate both a justifiable excuse for her failure to comply with the certification order, and a potentially meritorious cause of action, which defense counsel maintains plaintiff failed to do, thus warranting the mandatory dismissal of the action.

So what is the consequence today to a plaintiff in a case in the Second Department for failing to timely serve a note of issue after being directed to do so by a court order certifying the case as ready for trial? In essence—none, if a defendant failed to serve a proper 90-day demand in accordance with all of the requirements of CPLR 3216 (see Kapnisakis v Woo, 114 AD3d 729, 730 [2014]; see also Rhodehouse v CVS Pharm., Inc., 151 AD3d 771, 772-773 [2017]). The Second Department does not even consider plaintiff's noncompliance in timely filing a note of issue a default until CPLR 3216 has been followed (see Kapnisakis v Woo; Arroyo v Board of Educ. of City of N.Y. at 21).

As plaintiff's attorney correctly points out, CPLR 3404 is applicable only to cases stricken from the trial calendar, not to{**60 Misc 3d at 829} those pre-note of issue cases administratively "marked off" or "disposed" due to inactivity, as in the case at bar (see Kapnisakis v Woo at 730; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2005]; see also Liew v Jeffrey Samel & Partners, 149 AD3d 1059, 1061 [2017]; Behan v Behan, 145 AD3d 653, 655 [2016]). The Second Department has declared that administratively purging these pre-note of issue cases, without the service of a 90-day written demand or an order pursuant to 22 NYCRR 202.27, "is not permitted" and should not be deemed a dismissal of the action (see Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2018]; Arroyo v Board of Educ. of City of N.Y. at 20-21). Prior to the legislature's amendment of CPLR 3216, which went into effect on January 1, 2015, the Second Department, in contrast to the First Department (see e.g. Garner v Latimer, 306 AD2d 209 [2003]) deemed certification orders from trial courts which were signed before January 1, 2015, as having the same effect as a 90-day notice pursuant to CPLR 3216 (see Stroll v Long Is. Jewish Med. Ctr., 151 AD3d 789, 790 [2017]; Duranti v Dream Works Constr., Inc., 139 AD3d 1000 [2016]) and consequently the plaintiff would be required to vacate their default or the dismissal of the case by demonstrating a justifiable excuse for the default and the existence of a potentially meritorious cause of action (Duranti v Dream Works Constr., Inc.; see Piszczatowski v Hill, 93 AD3d 707, 708 [2012]). However, the legislature's amendment to CPLR 3216 overruled that line of Second Department case precedent, and now a certification order would have to set forth specific conduct constituting neglect by the plaintiff to qualify as a proper CPLR 3216 demand (see CPLR 3216 [b] [3]; Rhodehouse v CVS Pharm., Inc. at 773). A defendant, of course, can still seek dismissal of the complaint pursuat to CPLR 3216 if the statutory preconditions are met, but if the court, on its own initiative, wishes to dismiss a pre-note of issue case, it must give the parties notice of its intention to do so (CPLR 3216 [a], [b] [3]; Rhodehouse v CVS Pharm., Inc.; Goldman v Citicore I, LLC, 149 AD3d 1042, 1044 [2017]).

Accordingly, the motion by the plaintiff for an order vacating the disposed marking on this case, restoring this action to the court's active inventory and extending the time for the plaintiff to file her note of issue is granted (see Bilkho v Roosevelt Sq., LLC at 850). The plaintiff must file her note of issue by July 31, 2018. The court notes that even though the plaintiff here has not proffered any excuse for timely filing the note of issue,{**60 Misc 3d at 830} in view of the plaintiff's demonstration that she has a potentially meritorious cause of action and did not intend to abandon the action, and the lack of evidence that the cross-moving defendant was prejudiced, and in light of the public policy in favor of resolving cases on the merits, the court would have vacated her default and granted additional time for her to file her note of issue (see US Bank, N.A. v Mizrahi, 156 AD3d 661, 662 [2017]; Kapnisakis v Woo at 730).

The cross motion by defendant AVR Massapequa LLC for an order dismissing the complaint against it pursuant to CPLR 3216 is denied.