PIGOTT, J.
In May 2003, plaintiffs Juliette and Jean Cadichon commenced a medical malpractice action against defendants Thomas Facelle, M.D., Good Samaritan Hospital and Montefiore Medical Center for injuries allegedly sustained by Mrs. Cadichon during surgery in July 2002. The trial court executed a preliminary and compliance conference order in August 2003 and May 2004, respectively, concerning the parties' discovery obligations and examinations before trial.
After plaintiffs commenced a separate medical malpractice action against defendant Dr. May—which was consolidated with
At issue on this appeal is the May 3, 2007 stipulation. At the time this stipulation was executed by the trial court and the parties, plaintiffs had complied with all discovery obligations, and Mrs. Cadichon had been deposed twice, once before and once after the consolidation of the actions. The order directed that Dr. Facelle be deposed by June 26, 2007; Dr. May by July 10, 2007; and representatives of Good Samaritan Hospital and Montefiore Medical Center by August 21, 2007, with plaintiffs providing the hospital defendants with 30 days notice as to the names of the representatives plaintiffs wished to depose. The stipulation also directed plaintiffs' counsel to file the note of issue on or before December 27, 2007.
Also served upon and signed by plaintiffs' counsel was a "
December 27, 2007 came and went. Plaintiffs did not file their note of issue by that date, allegedly because defendants had still not been deposed. Unbeknownst to the parties, the case was
Supreme Court denied plaintiffs' motion to vacate the dismissal pursuant to CPLR 3216, and the Appellate Division, in a 3-2 decision, affirmed (71 A.D.3d 520 [2010]). Plaintiffs appeal as of right on the two-Justice dissent. We previously determined that the Appellate Division order should be deemed the final appealable paper for purposes of this Court's jurisdiction (15 N.Y.3d 877, 879 [2010]), and we now reverse.
CPLR 3216 (a) provides that
A case cannot be dismissed pursuant to CPLR 3216 (a), however, unless a written demand is served upon "the party against whom such relief is sought" in accordance with the statutory requirements, along with a statement 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 for unreasonably neglecting to proceed" (CPLR 3216 [b] [3] [emphasis supplied]).
Here, the action was apparently "dismissed" on December 31, 2007. But there is no order of dismissal to that effect, as evidenced by the parties' conduct in scheduling depositions as if the case were still active. Defendants point to the stipulation, claiming that once the plaintiffs failed to file their note of issue, the trial court was within its right to dismiss the action. It is evident from the 90-day demand and the dictates of CPLR 3216 that the plaintiffs' failure to comply with the demand would
Although inapplicable to this case, the July 7, 2008 amendment to CPLR 205 (a),
It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously ... [and] that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 N.Y.3d 514, 521 [2005], citing Miceli v State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 [2004]; Brill v City of New York, 2 N.Y.3d 648 [2004]; Kihl v Pfeffer, 94 N.Y.2d 118 [1999]). But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the Clerk's Office.
GRAFFEO, J. (dissenting).
Although it may not be apparent from the majority writing, the issue before us is whether the courts below abused their discretion in declining to reinstate plaintiffs' claim after it was dismissed as a consequence of their undisputed failure to comply with a CPLR 3216 90-day demand to file a note of issue. Because I discern no abuse of discretion, I would affirm.
The majority reinstates plaintiffs' complaint based on their conclusion that the purported "ministerial" dismissal of the claim was erroneous because it was not preceded by a motion on notice—an argument that plaintiffs have not asserted at any stage of this proceeding. The majority therefore decides this case on an unpreserved issue that was never raised in the parties' submissions. The approach is also misguided because the fact that the prior dismissal was not preceded by such a motion could not have had any material effect on the rights of the parties. If Supreme Court had sua sponte initiated a motion on notice to dismiss plaintiffs' claim based on failure to comply with the 90-day demand as the majority suggests should have occurred, plaintiffs would still have had to meet the CPLR 3216 standard in order to avoid dismissal—the same standard Supreme Court applied to determine the motion to vacate the order of dismissal. Since plaintiffs failed to meet the statutory standard (a conclusion that the majority does not dispute), they are not entitled to reinstatement of their claim. Accordingly, I respectfully dissent.
In 2003 and 2005, plaintiffs Juliette and Jean Philippe Cadichon commenced separate medical malpractice actions against two physicians and two hospitals arising from treatment Mrs. Cadichon received following the surgical removal of her gallbladder. A series of scheduling orders were issued directing discovery and imposing deadlines for plaintiffs to take certain actions, including the filing of a note of issue. The actions were consolidated in May 2006 and a compliance conference was conducted by Supreme Court in May 2007.
At that time, with significant discovery remaining outstanding, the parties agreed that the depositions of defendants
In addition, Supreme Court sua sponte issued a separate "
During the period between the issuance of the court's May 2007 order and the December 27, 2007 note of issue deadline, plaintiffs did not schedule or conduct the depositions of the physician defendants, nor did they identify the witnesses they sought to depose from the hospitals, a condition precedent to conducting those depositions. Hence, plaintiffs failed to file a note of issue by December 27, 2007 as required by the court's demand. Plaintiffs also did not undertake to contact the court during this time period, either to seek an extension or amendment of the scheduling order, to move to compel the depositions or to secure other assistance in relation to completion of discovery. Instead, plaintiffs' attorneys allowed the court's note of issue deadline to pass without
In April 2008, plaintiffs' counsel moved to vacate the dismissal of the action, contending that plaintiffs should not be held accountable for failing to timely file a note of issue because defendants had delayed the completion of discovery. Plaintiffs' attorneys argued that they had no obligation to present a justifiable excuse for the default or offer an affidavit establishing the merit of their claim as required by CPLR 3216 because they asserted that defendants had stymied any efforts to complete discovery by failing to appear for their depositions.
All of the defendants opposed the motion and cross-moved for the issuance of a judgment memorializing dismissal of the claim. They denied having obstructed the completion of discovery and maintained that plaintiffs' attorneys had made no attempt to schedule defendants' depositions within the deadlines established in the scheduling order.
In response, an attorney from plaintiffs' law firm submitted an affirmation averring that he tried to schedule the deposition of Dr. Facelle by making "numerous" telephone calls to the deposition clerk at the doctor's law firm. Plaintiffs' attorney did not indicate that attempts were made to schedule the remaining depositions. Plaintiffs also submitted an affirmation of an unidentified physician who attested to the merit of plaintiffs claims, at least with respect to some of the defendants. In surreply papers, defendants argued that plaintiffs' belated excuse for the delay was inadequate and they challenged the sufficiency of the affidavit of merit.
In an August 2008 order, Supreme Court denied plaintiffs' motion to vacate the dismissal of the action. The court noted that it had personally served plaintiffs' counsel with the demand directing the filing of a note of issue by December 27, 2007 and stating that lack of compliance with the demand would result in dismissal. Applying the CPLR 3216 standard, the court concluded that plaintiffs' proffered excuse for the default was
On plaintiffs' appeal, the Appellate Division affirmed, with two Justices dissenting (71 A.D.3d 520 [2010]). The majority concluded that Supreme Court had not abused its discretion in finding that plaintiffs failed to meet their CPLR 3216 burden of establishing a justifiable excuse for the failure to timely file a note of issue. The dissent would have reinstated the complaint, but not on the grounds relied on by the majority in this Court. Rather, the Appellate Division dissenters concluded that the discovery delays were attributable to defendants and that plaintiffs established both a justifiable excuse and a meritorious cause of action as required by CPLR 3216. Plaintiffs appeal as of right on the two-Justice dissent.
I believe that the focus in this case should be on CPLR 3216, which governs dismissals arising from the neglect to timely prosecute an action. It provides:
We have characterized this statute as "extremely forgiving of... delay" because subdivision (b) precludes a court from terminating an action unless three preconditions are met: more
Although the majority fails to address the plain language of the statute, it is important to note that CPLR 3216 (a) expressly grants a trial court the authority to either sua sponte dismiss the claim or await a motion to dismiss from a defendant (if plaintiff "unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading" [emphasis added]).
Regardless of whether a defendant moves to dismiss in the first instance or the court initiates the dismissal, prompting a motion to vacate, the statutory standard for resolving the application is the same—to avoid dismissal or secure reinstatement of the litigation a plaintiff must show a justifiable excuse for the delay and a meritorious claim. For this reason, although the majority concludes otherwise, it is irrelevant that the court initially sua sponte dismissed the complaint rather than waiting for one of the defendants to make a motion to dismiss on notice. The parties addressed the same issues—raising the same factual and legal arguments—in the motion to vacate the dismissal as would have been raised in a motion to dismiss. In reinstating the complaint on a procedural basis not advanced by plaintiffs, the majority fails to explain why it ignores the substantial motion practice in Supreme Court in which the parties litigated
That conclusion is supported by our precedent. We have considered the propriety of CPLR 3216 dismissals on at least two occasions, in Baczkowski and Di Simone. In the former, it was defendant that filed the 90-day demand for the filing of a note of issue (not the court, as occurred in this case). In response to defendant's subsequent motion to dismiss made after plaintiff missed the deadline, the plaintiff proffered two excuses for the delay: that "uncertainty over pending third-party discovery excused the delay" and that a secretary from the law firm representing plaintiff had attempted to file a note of issue after the deadline passed but was not permitted to do so (89 NY2d at 504). We determined that both were inadequate because plaintiff failed to demonstrate an appropriate and timely effort to comply with the 90-day demand. We were troubled by the fact that plaintiff not only defaulted on the obligation to file the note of issue but had also neglected to "take any other step indicating an intention to resume prosecution of the action, such as moving to vacate the 90-day demand or seeking an extension of time within which to file a note of issue" (id. at 503-504). We therefore held that Supreme Court had abused its discretion in denying defendant's motion to dismiss but the Appellate Division had rectified that error by reversing Supreme Court's order and dismissing plaintiff's claim. In contrast, in Di Simone, because plaintiff had established a meritorious claim and demonstrated that the failure to comply with a 90-day demand was excusable as it was a consequence of her attorney's disbarment and the resulting lapse of representation during the relevant time period, we held that the Appellate Division abused its discretion in dismissing the cause of action.
Our analysis in prior CPLR 3216 cases is consistent with the approach this Court has repeatedly taken over the past decade in comparable circumstances. Until today, in decision after decision, we have held that dilatory actions by attorneys that unjustifiably delay the course of litigation—including delays in conducting discovery, delays in filing summary judgment motions or delays in proceeding to trial through the filing of a note
In applying the rules set by the Legislature in the CPLR, we have never suggested that we do not appreciate the difficulties and practice pressures experienced by members of the trial bar. Certainly, the time and effort needed to identify and secure appropriate expert witnesses, along with other relevant evidence, prior to conducting depositions or complying with other discovery demands may, in some circumstances, result in
After all, litigation is an uncertain business for both plaintiffs and defendants and neither side benefits when disputes are unnecessarily protracted. Plaintiffs are entitled to prompt resolution of their claims—they have a legitimate need to know whether they have a viable cause of action and, if so, to secure adequate compensation for their injuries within reasonable time constraints. This is especially true in cases that involve seriously injured plaintiffs who may be unable to work and may suffer physical and financial hardship while their lawsuits are pending. Similarly, defendants are anxious to learn whether they will be held responsible for the claims made against them and, if so, the extent of the judgment that will be imposed.
Litigants therefore desire and deserve a court system that administers justice in a fair, respectful and reasonably efficient manner. It is this policy that the Legislature has endeavored to advance by fashioning rules governing the progress of litigation, such as the procedure in CPLR 3216 for enforcement of a 90-day demand for filing of a note of issue. And, in my view, it is the role of the courts to ensure that all parties comply with the relevant statutory directives. Because I believe that these principles should inform the resolution of this case, I turn to the traditional analysis we have applied in CPLR 3216 dismissal cases.
Under CPLR 3216, the issue for resolution is whether, as a matter of law, the courts below erred in concluding that plaintiffs failed to establish a justifiable excuse for the default in filing the note of issue. In their motion to vacate the
Here, read in their entirety, the papers submitted in support of plaintiffs' vacatur motion suggest two excuses for the delay: a claim that defendants thwarted plaintiffs' efforts to complete the depositions directed in the scheduling order and an allegation that plaintiffs' lawyers had adequately fulfilled their obligations in relation to the depositions since an unnamed clerk at the law firm representing Dr. Facelle had been telephoned several times in an effort to schedule the physician's deposition.
No doubt, the court's May 2007 conference—resulting in the fifth scheduling order issued in relation to these medical malpractice claims—was intended to light a fire under all of the parties' representatives, both plaintiffs' counsel and the four law firms appearing for defendants. None of the parties involved in this case is deserving of praise—the record indicates that both sides were less than expeditious in responding to earlier discovery orders. But the court dismissed the claim based on plaintiffs' failure to file a note of issue within the time frame directed in the "so ordered" stipulation and demand. The stipulation mandated that the depositions be conducted "on or before" specified dates. Thus, the stipulation contained
The only record evidence of any attempt made by plaintiffs' counsel to actually schedule the depositions during the relevant time period were statements that one lawyer "placed numerous phone calls to the deposition clerk" at the law firm representing Dr. Facelle and was told that his calls would be returned. But Supreme Court did not abuse its discretion in concluding that these purported efforts were insufficient to justify plaintiffs' failure to timely schedule and conduct Dr. Facelle's deposition— much less the depositions of the remaining defendants, who were each separately represented. On this record, plaintiffs' failure to complete discovery cannot fairly be attributed to defendants, who apparently waited for plaintiffs to take further measures consistent with the scheduling order. Even if plaintiffs' conclusory claim that defendants thwarted their discovery efforts and failed to schedule plaintiffs' medical examinations is credited, this would not warrant vacating plaintiffs' default because the CPLR provided plaintiffs with other means for redress, including moving to compel disclosure pursuant to CPLR 3124 or moving to strike defendants' answers pursuant to CPLR 3126 (3) or CPLR 2004.
Furthermore, plaintiffs' action was not dismissed because they failed to conduct depositions—the dismissal was a
Because I discern no abuse of discretion in the determination of the courts below that plaintiffs failed to establish a justifiable excuse for noncompliance with the "so ordered" stipulation and court-issued demand, there would be no basis to disturb the order denying vacatur of the dismissal even if the affidavit of merit had been sufficient as to all party defendants. Therefore, a discussion of the second requirement of the CPLR 3216 standard is unnecessary to my analysis.
Finally, the Court is apparently unanimous in its conclusion that we may not entertain plaintiffs' argument that Supreme Court's order denying the motion to vacate was erroneous due to the court's failure to apply a new standard imposed in a July 2008 amendment to CPLR 205 (a)—a statute that addresses when a plaintiff may recommence an action that has been dismissed on a basis unrelated to the merits. The majority notes that this new provision is inapplicable to this case and I agree. Even crediting the assertion that the new CPLR 205 (a) language applies when there has been no attempt to recommence an action following dismissal (as is the case here), the amendment did not become effective until seven months after Supreme Court dismissed plaintiffs' claim. Moreover, the CPLR 205 (a) argument is not preserved for our review because it was not raised in the motion to vacate the dismissal.
None of us likes to see a case dismissed as a result of a procedural default—we all would prefer to have personal injury actions resolved on the merits. However, there are times when
Order, insofar as appealed from, reversed, etc.