Gripe Serv. Co. v. PUR PAC Inc.

The former attorney for Defendant Tomlinson is currently on a leave of absence and the case was reassigned to Mr. Amini for the Defendant: Sam Amini, Esq. Scahill Law Group, P.C. Recitation, as required by Civil Procedure Law and Rules (CPLR) 2219(a), of the papers considered on the review of this motion for summary judgment. Papers: Numbered: Defendants’ Notice of Motion, Affirmation and Annexed Exhibits                1 Plaintiff’s Affirmation in Opposition and Annexed Exhibits          2 DECISION/ORDER   Upon the foregoing cited papers, the Decision/Order on this motion is as follows: PUR PAC Inc. and Xiang Lang (Defendants), appearing by its attorney in this property damage proceeding, move this Court pursuant to CPLR §3404 for an Order restoring this matter to the calendar and further, dismissing it as abandoned. After the filing of the instant motion, the Defendants and Gripe Service Co. (Plaintiff) stipulated to restoring the matter to the calendar. Plaintiff opposes Defendants’ motion to dismiss. Defendants’ motion to dismiss is DENIED. Procedural History On or about March 15, 2018, Plaintiff commenced the instant action seeking payment for property damage allegedly suffered as a result of a motor vehicle accident occurring on November 22, 2017¹. A summons and endorsed complaint was served on the Defendants on or about May 9, 2018.² On December 12, 2018, oral argument was held on Defendants’ motion to strike Plaintiff’s notice to admit after which, the matter was marked “Settled-Index and Motion Disposed”, Part 30, Judge Gerstein settled and disposed”.³ On or about January 10, 2019, Plaintiff filed a Bill of Particulars which alleged property damage totaling $2,427.91.⁴ Examinations Before Trial (EBT) were scheduled to be held on January 11, 2019 for Emmanuel Emeka Sr. (Emeka), the driver of Plaintiff’s vehicle, and for co-Defendant Xiang Lang, the driver of co-Defendant PUR PAC’s vehicle.⁵ Emeka failed to appear for the scheduled January 11, 2019 EBT.⁶ Defendants were then notified that Emeka intended to retain new counsel.⁷ By notice of motion dated January 9, 2020, the Defendants sought to restore the case to the calendar in order to dismiss it as abandoned.⁸ There is no record of a note of issue having been filed.⁹ However, even if one was filed, as reasoned below, the Court’s decision to deny Defendants’ motion to dismiss would be the same. During the July 30, 2020 Skype conference conducted by this Court, the parties stipulated to restoring the case to the calendar. On August 3, 2020, Plaintiff arranged with Defendants to schedule an EBT of the parties for October 8, 2020.¹⁰ On or about August 5, 2020, the Plaintiff filed the instant response opposing Plaintiff’s motion to dismiss. Discussion Pursuant to CPLR §3404, Defendants’ motion seeks to restore the case to the calendar and once restored, to dismiss the case. In support of their motion to dismiss, Defendants claim that the Court marked the case as “settled and disposed” following oral argument on December 12, 2018.¹¹ The Defendants further claim that after Emeka failed to appear for the deposition scheduled for January 11, 2019, “there has been no further activity on this matter.”¹² In their motion, dated January 9, 2020, Defendants note that more than one year had transpired since January 11, 2019 without additional efforts by the Plaintiff to move the case toward resolution, thereby meeting the requirement under CPLR §3404 that the case warrants dismissal as abandoned. In its response, Plaintiff confirms that the parties stipulated to the restoration of the case to the calendar, but it opposes the motion to dismiss. Plaintiff argues that CPLR §3404 cannot be used to dismiss a pre-note of issue case, and that Defendants have failed to make the requisite 90-day demand pursuant to CPLR §3216 to resume prosecution and to file the notice of trial.¹³ Plaintiff asserts that it has a reasonable excuse for any perceived delay in prosecution.¹⁴ Plaintiff also argues that it is not bound to produce Emeka for examination, “despite its numerous attempts”, because Emeka is not a party and further, that Emeka has never been represented by Plaintiff’s counsel and has in fact retained an attorney for his own personal injury action arising out of the same incident.¹⁵ With respect to the use of CPLR §3404 to restore the case to the calendar, this question is mooted by the parties’ stipulation.¹⁶ This leaves the primary issue whether this Court should dismiss the case pursuant to CPLR §3404, or take any other appropriate remedy. CPLR §3404 states in part that: “[a] case in the supreme court or a county court marked ‘off’ or struck from the calendar…and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.” Cf. Bradley v. Konakanchi, 156 A.D.3d 187, 188 (4th Dep’t 2017) (CPLR §3404 provides for the administrative dismissal of inactive cases under certain circumstances). The timing of a CPLR §3404 motion can be determinative as to the statute’s applicability. In Lopez v. Imperial Delivery Service., 282 A.D.2d 190 (2nd Dep’t), lv. dismissed, 96 N.Y.2d 937 (2001), the Plaintiff commenced a personal injury action and, after some discovery, there was delay caused in part by substitution of counsel on both sides.¹⁷ Almost four years later, when counsel for the Defendant appeared and Plaintiff’s counsel did not, the case was marked “off the calendar.”¹⁸ When the Plaintiff failed to restore the action to the calendar within one year of it being marked-off, it was deemed abandoned and dismissed by the court clerk pursuant to CPLR §3404.¹⁹ The lower court rejected the Plaintiff’s attempt to restore the case to the calendar, finding that Plaintiff failed to show a reasonable excuse for its failure to proceed and failed to show that Defendants were not prejudiced.²⁰ The Second Department reversed, holding that CPLR §3404 could not be used to restore and then dismiss a case where no note of issue had been filed.²¹ The “perhaps comatose” case could have been avoided had the lower court held that Plaintiff’s failure to appear warranted the dismissal pursuant to 22 NYCRR §202.27[c].²² In the alternative, the lower court could have dismissed the case pursuant to CPLR §3216 because the case had been certified as ready for trial prior to being marked-off.²³ The decisions post Lopez consistently hold that CPLR §3404 cannot be used to dismiss pre-note of issue actions. For example, in Khaolaead v. Leisure Video, 18 A.D.3d 820 (2d Dep’t 2005), a personal injury action marked “disposed” by a court computer prior to any note of issue having been filed and years later a court properly granted the plaintiffs’ motion to restore the case to the calendar.²⁴ Since the case was not dismissed pursuant to CPLR §3216 or 22 NYCRR §202.27, its purging was impermissible and had to be vacated, with the Defendant’s next possible move being service of a 90-day written demand pursuant to CPLR §3216 to require the Plaintiff to resume prosecution by filing a note of issue.²⁵ See also Arroyo v. Board of Educ. of City of New York, 110 A.D.3d 17, 19-21 (2d Dep’t 2013) (where dismissal was not sought pursuant to either CPLR §3216 or 22 NYCRR §202.27 but was instead sought on the doctrine of laches or the failure to prosecute, case had to be restored to pre-note of issue calendar twelve years after being “marked off” the calendar and recorded “disposed”); Bilkho v. Roosevelt Sq., 157 A.D.3d 849, 850 (2d Dep’t 2018) (upon vacating note of issue because of unresolved discovery, court had effectively placed the matter back to pre-note of issue status and thus its subsequent purge or mark-off as “disposed” was impermissible); Wells Fargo Bank, N.A. v. Drago, 170 A.D.3d 1083, 1084 (2d Dep’t 2019) (where pre-note of issue case was not dismissed pursuant to 22 NYCRR §202.27, courts do not possess the power to dismiss an action for general delay); Johnson v. Sam Minskoff & Sons, 287 A.D.2d 233, 235 (1st Dep’t 2001) (statutory placement of CPLR §3404 following behind CPLR §3402 [procedures for filing a note of issue] and CPLR §3403 [seeking a trial preference] supported position that CPLR §3404 could only be applied to a case on the trial calendar, i.e., only after the note of issue is served and filed); Stewart v. Makhani, 146 A.D.3d 703, 704 (1st Dep’t 2017) (holding that a party can use CPLR §3216 or 22 NYCRR §202.27, but not CPLR §3404, to strike a case from the calendar pre-note of issue); Novastar Mtge., Inc. v. Melius, 145 A.D.3d 1419, 1421 (3rd Dep’t 2016) (CPLR §3404 cannot be used to dismiss for failure to prosecute when no note of issue has been filed); Bradley v. Konakanchi, 156 A.D.3d at 188 (where note of issue has been vacated, case reverts to pre-note of issue status and CPLR §3404 cannot be used to dismiss case). In Wells Fargo Bank, N.A. v. Drago, the Court warned Plaintiff that if it failed to appear, the complaint would be dismissed pursuant to 22 NYCRR §202.27. When Plaintiff failed to appear and the Court dismissed the matter, the dismissal did not reference 22 NYCRR §202.27.²⁶ When the Plaintiff later moved to restore the action, the Defendant claimed that the case had been dismissed pursuant to CPLR §3216(a) (rather than 22 NYCRR §202.27) and that Plaintiff’s motion should be denied in any event because its excuse for non-appearance was unreasonable.²⁷ In ruling that the case had to be restored to the calendar, the Second Department held that the dismissal had been of an “administrative nature” rather than pursuant to either CPLR §3216 or 22 NYCRR §202.27.²⁸ As the case was never formally dismissed pursuant to a 22 NYCRR §202.27 Order, there was no basis to consider whether Plaintiff had a reasonable excuse for missing the conference or whether it had engaged in other dilatory conduct. In addition, as the Plaintiff had not been served with the 90-day demand to file a note of issue required by CPLR §3216, the action was not properly dismissed and Plaintiff’s motion to vacate the dismissal was granted.²⁹ In the instant matter, the Court now turns to Plaintiff’s claim that it was not required to produce Emeka on January 11, 2019 on the grounds that he was not in its exclusive control “despite its numerous attempts”. The general rule is that courts are without power to compel a party to produce a former employee for an EBT. See, e.g., Frankel v. French & Polyclinic Medical School & Health Center, 70 A.D.2d 947, 948 (2d Dep’t 1984) (defunct hospital no longer had employees at time of deposition and therefore could not be sanctioned for its failure to produce deponent); Zappolo v. Putnam Hosp. Ctr., 117 A.D.2d 597, 603 (2d Dep’t 1986) (where hospital personnel having knowledge of case were no longer employed there, hospital could not be compelled to produce its former employees for examination in lieu of having its answer struck); Schneider v. Melmarkets, 289 A.D.2d 470, 471 (2d Dep’t 2001) (where almost two years before the filing of the note of issue, Defendants disclosed to Plaintiff that witness was no longer an employee and provided Plaintiff with last known address, court had no basis to order Defendants to produce the former employee, especially where Plaintiffs had never sought to depose him as a non-party witness); see also A.M. Med. Svces., P.C. v. Allstate Ins. Co., 14 Misc. 3d 143(A), (App. Term 2d Dep’t 2d, 11th & 13th Jud. Dists. 2007), (court could not order Plaintiff to produce treating physician until it was determined whether doctor was an independent contractor or was Plaintiff’s employee, but Plaintiff could be compelled to produce a witness who knew what the doctor’s status was); Holloway v. Station Bar Corp., 112 A.D.3d 784, 785 (2d Dep’t 2013) (record did not show that Defendant willfully and contumaciously failed to produce two former employees so court properly exercised its discretion to deny CPLR §3216 motion to strike Defendant’s pleading). As A.M. Med. Svcs. suggests, the current and past relationship between the would-be deponent and the party from whom discovery is being sought is relevant in determining to what extent the party is excused for non-compliance and what steps can be taken to remedy the non-compliance. In Stinton v. Robin’s Wood, Inc., 45 A.D.3d 203 (2d Dep’t 2007), the Plaintiff in a personal injury action sought to depose Defendant’s employee who had been painting an area where the Plaintiff fell.³⁰ The painter failed to appear for the deposition on the scheduled date or on any of the rescheduled dates, including those ordered by the court.³¹ Defendant opposed Plaintiff’s motion to strike its answer, arguing that it had made diligent efforts to produce the painter by first sending him letters, albeit in care of Defendant at its own address, then claimed he was no longer employed there and further claimed it had served the ex-employee with a subpoena.³² The Second Department found that the lower court had acted within its discretion in striking Defendant’s answer and that Defendant had been willfully and contumaciously non-compliant as it had not explained why it did not produce the painter when he was still employed, and that its failure to timely disclose that it no longer employed the painter or to produce any other employee for deposition were unreasonable, as the latter two of these actions could have afforded Plaintiff the information necessary to subpoena the ex-employee as a non-party witness.³³ In Morson v. 5899 Realty, LLC, 171 A.D.3d 916, 917 (2nd Dep’t 2019), the three Defendants agreed to produce a non-party witness, who happened to be the principal of all three Defendants, but then failed to do so. When Plaintiff moved pursuant to CPLR §3216 to preclude Defendants from offering certain evidence in their defense, Defendants opposed on the grounds that the would-be deponent had been out of the country and, in any event, was not a witness to the accident.³⁴ The Court imposed the evidence preclusion sanction on the Defendants, holding that they did not detail any good faith efforts to secure the deponent’s appearance, a decision which the Second Department affirmed.³⁵ Issues Presented: Whether Defendants can apply CPLR §3404 as their basis to persuade this case to dismiss the matter. Additionally, whether Emeka is within Plaintiff’s dominion and control requiring his production by Plaintiff for the EBT. Analysis The Court is not persuaded by Defendants’ motion to dismiss this case pursuant to CPLR §3404 as abandoned. As argued by Plaintiff, CPLR §3404 cannot be applied to pre-note of issue cases, citing Lopez v. Imperial Delivery Svce.³⁶. Courts post Lopez restored dormant pre-note of issue cases to the calendar that had been marked-off administratively and even dismissed, whether it was by a clerk or a computer or pursuant to CPLR §3404 and even when the Plaintiff may have been dilatory.³⁷ The instant matter has already been restored to the calendar pursuant to the parties’ stipulation. Since a CPLR §3404 motion predicated on any delay by the Plaintiff cannot be the basis for dismissal in the absence of evidence that Plaintiff failed to respond to a 90-day notice of demand, Defendants can serve and file a notice pursuant to CPLR §3216 requiring the Plaintiff to serve and file a note of issue. See, e.g., Novastar Mtge., Inc. v. Melius, 145 A.D.3d at 1421 (Court may dismiss after a party has been served with a written demand to serve and file a note of issue within 90 days and party has failed to do so). If the Plaintiff then fails to serve and file a note of issue, the Court can then consider the circumstances for such failure and determine whether it should dismiss the action pursuant to CPLR §3216 or take other actions, including preclusion of evidence, striking of pleadings, or other action it deems just.³⁸ Regarding Emeka and Plaintiff’s inability to produce him for the EBT, the papers submitted by both sides raise ambiguity as to Emeka’s employment status with Plaintiff. Is he a current or former employee; current or former independent contractor; when did his status change, if at all? This Court is troubled by the fact that Plaintiff, at least as of and until January 11, 2019, acted as if it had control over Emeka. In addition, Plaintiff has provided no detail about “its numerous attempts” to produce Emeka, nor has it specified which representative it can produce that could offer relevant information about the accident in lieu of Emeka. As for Defendants, this Court is unaware of any attempts made by that party to secure Emeka’s attendance pursuant to subpoena. To the extent that there is a pending motion to join Emeka’s personal injury action with the instant action, some of these questions may become moot contingent on the decision pending in Part 35, or whether Emeka (depending on his status with Plaintiff) will attempt to file a third-party action against Plaintiff. Accordingly, the Defendants’ motion to dismiss pursuant to CPLR §3404 is DENIED. The Court further Orders Plaintiff to provide an explanation forthwith regarding Emeka’s employment status and to detail the efforts it made to produce Emeka for the EBT and to provide the identity of a proxy witness. The Court further Orders that Defendants provide forthwith their efforts to produce Emeka. The Court further Orders Defendants to serve and file, within ten (10) business days of this Decision and Order, a 90-day demand pursuant to CPLR §3216 requiring Plaintiff to serve and file its note of issue (cf. Johnson v. Sam Minskoff & Sons, 287 A.D.2d at 234). Conclusion As there is no evidence that a note of issue was served and filed, a motion to dismiss this action pursuant to CPLR §3404 is inapplicable. As the parties have stipulated to the matter being restored to the calendar and have scheduled depositions for October 8, 2020, this Court is ordering that Defendants’ 90-day demand be served and filed within ten (10) business days of this Decision and Order and the Plaintiff’s note of issue be served and filed within its statutory timeframe. The Defendants’ motion to dismiss is therefore DENIED. This constitutes the Decision and Order of the Court. Dated: September 28, 2020