Papers Numbered Defendant’s Motion to Dismiss, Exhibits Attached 1 Plaintiff’s Opposition to Defendant’s Motion to Dismiss, Exhibits Attached 2 Defendant’s Reply to Plaintiff’s Opposition 3 DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order on the motions is as follows: Defendant’s motion to dismiss Plaintiff Lenmara K. Ametova’s complaint pursuant to CPLR §3216 for failure to prosecute this action is denied. PROCEDURAL HISTORY On or about April 18, 2017, Lenmara K. Ametova and Ibragim Ametov (hereinafter, Plaintiff’s) brought suit against Samantha K. Mellone and Glen C. Mellone (hereinafter, Defendants) by filing a summons and complaint for personal injuries sustained as a result of a motor vehicle accident occurring on January 11, 2016 in Kings County, New York. On June 20, 2017, Defendants joined issue by serving an Answer to the Summons and Complaint. On or about February 1, 2018, Plaintiff, Ibragim Ametov discontinued his claims against the Defendants with prejudice. On June 4, 2019, by an Order issued by the Honorable Judith N. McMahon, the Supreme Court of the State of New York, County of Richmond transferred this action pursuant to CPLR §325(d) to the Civil Court of the City of New York, County of Richmond. In this Order provided to both sides, all papers on file related to this matter were required to be transferred to Civil Court and Plaintiff was required to serve the Calendar Clerk and Defendant with a copy of the Order. After resolution discussion failed to dispose of the case, a written demand for resumption of the prosecution of the case and a demand for a Notice of Trial was served by Defendant on Plaintiff on May 20, 2022. Defendant’s attorney now moves this Court seeking to restore the case for the sole purpose of having the case dismissed for Plaintiff’s failure to prosecute. This matter was taken on submission by Your Honor on October 24, 2022. DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO PROSECUTE IS DENIED. Defendant moves this Court to dismiss the Plaintiff’s complaint pursuant to CPLR §3216 for failure to prosecute. Pursuant to CPLR §3216, (a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof 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. Unless the order specifies otherwise, the dismissal is not on the merits. (b) No dismissal shall be directed under subdivision (a) and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: 1. Issue must have been joined in the action; 2. One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later; 3. The court or party seeking such relief, 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 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. Defendant argues that Plaintiff’s complaint should be dismissed for failure to prosecute as Plaintiff has unreasonably neglected to proceed in the action and all requirements for dismissal are satisfied. First, as required by CPLR §3216(1), Defendant explains that the issue in the action was joined over five (5) years ago, June 20, 2017. Next, as required by CPLR §3216(2), more than one year has passed since the joinder of issue. Finally, as required by CPLR §3216(3), over ninety (90) days have passed since Plaintiff’s attorneys received the Demand to Resume Prosecution and have failed to comply. In addition, Defendant argues that more than three (3) years have passed since the action was transferred under CPLR §325(d), June 4, 2019, and Plaintiff has made no attempt at complying with the Court Order. Defendant explains that other than a conversation with a paralegal at Plaintiff’s firm regarding alternative dispute resolution, no conversations or discussions were had regarding this matter since the case was transferred pursuant to CPLR §325(d). Ultimately, Defendant alleges that the neglect and delay are all attributable to the Plaintiff and moves for the action to be dismissed. Plaintiff opposes said motion and requests that the Court deny Defendant’s motion in its entirety. Plaintiff cites correspondence that it sent to the Supreme Court and Defense counsel from July 31, 2020 where Plaintiff requested an assigned Index Number and Conference. Plaintiff followed up with subsequent correspondence on June 28, 2022 for instructions with how to proceed on the matter. In each letter to the Supreme Court, Plaintiff explains that they contacted Civil Court and were informed that the case was not transferred yet. Plaintiff’s papers do not state that it complied with the CPLR §325(d) transfer order or that it responded to the Demand to Resume Prosecution. Although the Defendant seemingly demonstrates that it has satisfied all prongs of the CPLR §3216 requirements for dismissal, the Court finds that the delay in this case is not attributable to the Plaintiff. This matter involved the full participation of e-filing in Supreme Court through NYSCEF. At that time, Civil Court was not participating in e-filing through NYSCEF. When transferred from Supreme Court to Civil Court, the electronic file was unable to be transferred to Civil Court and a paper file, by no fault of either party, was not generated to effectuate the transfer. It was not until September 2022 when an amended 325(d) Transfer Order was issued, that Civil Court received the file and was able to generate an index number, thus allowing Defendant to even file the instant motion. It is unsurprising that Plaintiff received the response it did from Civil Court and no response from Supreme Court as the case ultimately was held in abeyance due to the incompatibility of the filing systems. The Court has no doubt that the mounting of circumstances stemming from a reduced workforce due to the COVID-19 Pandemic as well as electronic incompatibility led to the failure of this matter being successfully transferred to Civil Court. Although Defendant seems to satisfy all prongs of the §3216 requirements, Defendant’s motion is premature as the delay is not attributable to the Plaintiff. Based on the foregoing, Defendant’s motion to dismiss Plaintiff’s complaint for failure to prosecute is denied. This matter is adjourned for Conference on December 12, 2022 at 9:30 A.M.. This constitutes the final decision and order of the Court. Dated: October 27, 2022
