| Walker v City of New York |
| 2007 NY Slip Op 09671 [46 AD3d 278] |
| December 6, 2007 |
| Appellate Division, First Department |
| Tarice Walker, an Infant, by His Natural Guardian, Sandra Velilla,Respondent, v City of New York et al., Appellants, et al.,Defendants. |
—[*1] Alexander J. Wulwick, New York City, for respondent.
Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 20, 2006 (brought upfor review pursuant to CPLR 5517 [b] by the appeal from an order, same court and Justice,entered February 7, 2006), which, upon reargument, granted plaintiff's motion to "restore theaction," and denied defendants-appellants' cross motion to dismiss the complaint, upon thecondition that plaintiff's guardian appear for a hearing pursuant to General Municipal Law§ 50-h within 30 days, modified, on the law, without costs, to deny plaintiff's motion to"restore the action" and grant defendants-appellants' cross motion to dismiss unconditionally, andotherwise affirmed, without costs. The Clerk is directed to enter judgment in favor ofdefendants-appellants dismissing the complaint as against them.
Plaintiff was born in June 1991 at a hospital operated by defendant New York City Healthand Hospitals Corporation (NYCHHC). On May 10, 1996, plaintiff, with leave of court, served anotice of claim asserting that, as a result of the medical malpractice of NYCHHC's staff, plaintiffsustained personal injuries. On July 22, 1998, plaintiff commenced this medical malpracticeaction against defendants, and approximately one month later, the municipal defendants,appellants herein, answered the complaint and served demands for discovery and a bill ofparticulars.
In May 2000, plaintiff's permanent guardian sought the appointment of a guardian ad litemfor plaintiff to protect his interests in this action. Supreme Court granted the motion to the extentof directing that a guardian ad litem would be appointed unless the permanent guardian appearedfor a hearing pursuant to General Municipal Law § 50-h within 45 days of the entry of theorder. While the permanent guardian did not comply with the order, it does not appear that aguardian ad litem was appointed.
On March 23, 2005, Supreme Court served on plaintiff's counsel a CPLR 3216 demand [*2]requiring plaintiff to complete all outstanding disclosure and serveand file a note of issue within 90 days of the demand. The demand made plain that plaintiff'sfailure to comply with the demand could serve as a basis for dismissing the action. Plaintiff didnot serve and file a note of issue within the 90-day period, and Supreme Court dismissed theaction.
Approximately three months after the action was dismissed, plaintiff moved to "restore theaction." Plaintiff's counsel asserted that he failed to comply with the CPLR 3216 demand becausehis calendar clerk failed to note the deadline. Counsel argued that the action should be restoredbecause defendants would not be prejudiced if the motion was granted. Plaintiff submitted noevidence regarding the merits of his claims. In addition to opposing plaintiff's motion, defendantscross-moved to dismiss the complaint. Defendants argued, among other things, that plaintiffprovided neither a reasonable excuse for his failure to comply with the CPLR 3216 demand nor amedical expert's affidavit evincing the merits of his claims. After receiving defendants' crossmotion, plaintiff served a bill of particulars and a conclusory response to defendants' discoverydemands, which had been served over seven years earlier.
Supreme Court summarily granted plaintiff's motion. The court subsequently granteddefendants' motion for reargument to the extent of dismissing the action unless the permanentguardian appeared for a General Municipal Law § 50-h hearing.[FN1]This appeal by defendants ensued.
Plaintiff's motion to "restore the action" was in fact a motion to vacate the dismissal of theaction. A motion to restore an action is necessary where a case is dismissed under CPLR 3404,the post-note of issue laxness dismissal statute (see Siegel, NY Prac § 376, at 632[4th ed]). Since no note of issue was ever filed, Supreme Court dismissed the action under CPLR3216 (see Johnson v Minskoff & Sons, 287 AD2d 233, 234 [2001], citing Lopez vImperial Delivery Serv., 282 AD2d 190 [2001], lv dismissed 96 NY2d 937 [2001]).
It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, aplaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-daydemand and a meritorious cause of action (Lopez, 282 AD2d at 197; see Rijo vMcLaughlin, 309 AD2d 716, 717 [2003]). Here, the conclusory and perfunctory claim of lawoffice failure asserted by plaintiff's counsel does not constitute a reasonable excuse. The calenderclerk of plaintiff's counsel's law firm merely averred that he obtained a copy of the CPLR 3216demand and failed, due to "clerical error," to file the note of issue. Neither this affidavit nor anyother evidence demonstrated a reasonable excuse for plaintiff's "extensive delays in prosecutingthe action both before and after [the] demand" (Garcia v Del Pacifico, 299 AD2d 188[2002]; see Gavillan v City of NewYork, 11 AD3d 217 [2004] [alleged excuse for failure to comply with CPLR 3216demand—eviction proceedings pending against plaintiff's counsel—did not explainthe pattern of delay over the course of the litigation]; Campos v New York City Health &Hosps. Corp., 307 AD2d 785, 786 [2003] [pattern of delay relevant to determination ofwhether plaintiff's excuse for her default was reasonable]; see also Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124[2007]).
Notably, the permanent guardian repeatedly failed to attend scheduled hearings under [*3]General Municipal Law § 50-h; plaintiff's counsel failed toensure that a guardian ad litem was appointed for plaintiff; and plaintiff's counsel took sevenyears to respond to demands for a bill of particulars and discovery. In light of the persistent andlengthy delay of plaintiff's counsel and the permanent guardian in prosecuting this case, neitherthe perfunctory claim of law office failure, which only attempted to explain plaintiff's failure tocomply with the 90-day demand, nor the portion of delay attributable to the permanent guardian'schildcare and work responsibilities, nor both, is sufficient to constitute a reasonableexcuse (see generally Andrea v Arnone,Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [HabiterraAssoc.], 5 NY3d 514, 521 [2005] ["Supreme Court was of course correct in thinking itundesirable to punish plaintiffs for the failures of their counsel. But what is undesirable issometimes also necessary, and it is often necessary . . . to hold parties responsiblefor their lawyers' failure to meet deadlines"]).
We also note that, under the particular facts of this case, plaintiff failed to demonstrate thathis action has merit. Where, as here, the gravamen of the dismissed action is medicalmalpractice, a plaintiff must submit the affidavit of a medical expert to demonstrate the merits ofthe action (Abelard v Interfaith Med. Ctr., 202 AD2d 615 [1994]; see Marks vKingsbrook Radiology, 267 AD2d 151 [1999], citing Mosberg v Elahi, 80 NY2d 941[1992]; see also Burke v Klein, 269 AD2d 348 [2000]). Plaintiff did not submit such anaffidavit in support of his motion to "restore the action." Therefore, the papers before SupremeCourt were insufficient as a matter of law to demonstrate the merits of plaintiff's claims.
To avoid the consequences of this failure, plaintiff asserts that we should take judicial noticeof the averments in a physician's affirmation, originally submitted by plaintiff in support of his1995 motion for leave to serve a late notice of claim, that plaintiff included in papers filed in thisCourt in opposition to a motion by defendants for an enlargement of time to perfect this appeal."Appellate review is limited to the record made on the motion and, absent matters that may bejudicially noticed, new facts may not be injected at the appellate level" (Regina vFriedman, 272 AD2d 461, 462 [2000]; see e.g. Broida v Bancroft, 103 AD2d 88, 93[1984]). While a court may take judicial notice of its records and files, it may "not take judicialnotice of a 'fact' which [i]s controverted" (Weinberg v Hillbrae Bldrs., 58 AD2d 546, 546[1977] [court could not take judicial notice of process server's affidavit, which was in court file,where issue raised regarding whether service of summons was properly effected]). Thus, themere presence of a document in a court file does not mean that judicial notice properly can betaken of any factual material asserted in the document (Ptasznik v Schultz, 247 AD2d197 [1998]). As observed by the Second Department in Ptasznik (247 AD2d at 199):"Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data,in camera materials, fingerprint records, probation reports, as well as depositions that maycontain unredacted gossip and all manner of hearsay and opinion."
"A court may only apply judicial notice to matters of common and general knowledge, wellestablished and authoritatively settled, not doubtful or uncertain. The test is whether sufficientnotoriety attaches to the fact to make it proper to assume its existence without proof" (Carterv Metro N. Assoc., 255 AD2d 251, 251 [1998] [internal quotation marks omitted];see Prince, Richardson on Evidence § 2-201 [Farrell 11th ed]). Of course, theopinions of a physician regarding the efficacy of the medical treatment provided by defendants toplaintiff are not facts of common and general knowledge that are well established andauthoritatively settled. Moreover, even if we could take judicial notice of the opinions ofplaintiff's expert, we are not required to do so (see Prince, Richardson on Evidence§ 2-202, at 30, quoting Hunter v New York, Ontario & W. R.R. Co., 116 NY 615,621 [1889] [" '(c)ourts are not bound to take judicial notice of matters of fact. Whether they willdo so or not depends on the nature of the subject, the issue involved, and the apparent justice ofthe case' "]). We should not be encouraging sloppy practice by taking judicial notice of factualmatters that a party unaccountably fails to supply before the nisi prius court (see Sutton vLavezzo, 160 AD2d 292, 293 [1990] ["Plaintiffs . . . urge that a statement ofthe merits by the proper party was submitted in a related case . . . and judicial noticeshould have been taken of this statement. In moving to vacate a default, the burden is on themovant, and not the court, to produce admissible evidence showing merit to the underlyingclaim"]).[FN2]Concur—Tom, J.P., Friedman, Gonzalez and McGuire, JJ.
Saxe, J., dissents in a memorandum as follows: I would affirm the order restoring this actionto the active pre-note calendar and denying defendants' cross motion to dismiss on the conditionthat plaintiff's guardian appear at a General Municipal Law § 50-h hearing.
The action was brought on behalf of a brain-damaged infant whose severe injures wereallegedly caused by negligence in the course of his delivery in June 1991. The infant'sgrandmother was granted custody of him on December 21, 1992, and was declared his legalguardian on October 13, 1995. A motion for leave to file a late notice of claim was granted onMay 2, 1996, and the action was commenced in 1998. The motion for late notice of claim wassupported with the affirmation of a physician, who observed that the hospital records stated thatat birth the infant was noted to be "foul smelling, with poor tone, and apneic," and who offeredhis opinion that the attending doctors departed from accepted medical practice by failing totimely diagnose clear signs of chorioamnionitis and to timely deliver the infant, allowingneonatal sepsis to develop, as a result of which the infant sustained severe psychomotor delay.
The section 50-h hearing was initially noticed for September 15, 1998; however, when theguardian appeared on that date with her attorney at the New York City Law Department's offices,she was informed that Corporation Counsel was not handling the matter. By letter dated October21, 1998, defendants confirmed the guardian's request to reschedule the section 50-h hearing toOctober 27, 1998. Approximately two years passed without any hearing or any other steps beingtaken by either side, until on June 26, 2000, when counsel for the infant moved for theappointment of a public guardian for the limited purpose of representing the infant, counselhaving been unable to secure the guardian's appearance at a hearing. Counsel explained in theapplication that the guardian was unable to take the necessary time off from work to appear for ahearing, as she was raising several grandchildren, two of whom required constant medicalattention, and she was also [*4]working outside the home tosupport the family, and all her available paid personal days off were needed to cover thechildren's medical visits.
In April 2001, the IAS court granted the motion "to the extent that a guardian ad litem will beappointed unless the guardian . . . appears for a 50-H hearing at a time and placeconvenient for her within 45 days of entry of this order." The guardian did not appear for thehearing within the 45-day time period; however, no further steps were taken to secure theappointment of a guardian ad litem for the infant.
Nor were any other steps taken by either party until a conference on March 23, 2005, atwhich time a 90-day notice was issued directing plaintiff to file a note of issue on or before June21, 2005. The calendar clerk for plaintiff's counsel asserts that he failed to file the notice of issuewithin the time prescribed; an attorney at the firm states that their office attempted to file a noteof issue but it was rejected by the court clerk because discovery was not yet complete.
The matter was either marked off calendar or dismissed at a calendar call on June 21, 2005.Plaintiff moved to restore the action on or about October 3, 2005.
The court's decision to grant plaintiff's motion and restore the action to the pre-note of issuecalendar was a provident exercise of discretion. Plaintiff established both a reasonable excuse forfailing to comply with the 90-day notice to file the note of issue, and a meritorious cause ofaction (CPLR 3216 [e]; see Grant v Cityof New York, 17 AD3d 215, 216 [2005]).
It is self-evident that in more than one instance, counsel for plaintiff failed to take the stepsnecessary to ensure the protection of plaintiff's interests, the most recent being the failure tocomplete discovery and file a note of issue. Nevertheless, this clear case of law office failureestablishes an acceptable excuse for the delay (see Muriel v St. Barnabas Hosp., 3 AD3d 419 [2004]). While theexcuse of law office failure may be insufficient where there is a pattern of neglect or delay on theplaintiff's part (cf. Gavillan v City ofNew York, 11 AD3d 217 [2004]), here the asserted pattern of delay amounts to theguardian's being overwhelmed with childcare and work responsibilities, counsel for bothsides being inactive between the IAS court's order of April 2001 and the conference on March23, 2005, and plaintiff's counsel failing to take action for some six months following issuance ofthe 90-day notice. Under the circumstances, the portion of the delay attributable to the guardian isentirely understandable and excusable, and the portion attributable to law office failure shouldnot defeat the rights of the injured infant on whose behalf the action was brought.
The requirement that plaintiff demonstrate a meritorious cause of action is satisfied by thepreviously submitted affirmation of plaintiff's medical expert, contained in the court's file. Thereis nothing inappropriate about taking judicial notice of the fact that the requisite affirmation hadpreviously been obtained and submitted by plaintiff in the underlying proceeding, and that it wascontained in the court's file. Doing so does not require the court to accept the accuracy of theopinion expressed in that affirmation; it merely recognizes that the court (and the opposing party)already has in its possession the requisite evidentiary materials. It is excessively punitive todeprive the injured infant plaintiff of his day in court because of counsel's failure to submit anaffirmation to the court when that same affirmation is already in the court's possession, havingbeen previously obtained and submitted.
Footnote 1: Plaintiff's permanent guardianeventually did appear for a hearing under General Municipal Law § 50-h in December2006, 15½ years after the alleged malpractice and 10½ years after the notice of claimwas served.
Footnote 2: Plaintiff does not offer anyexcuse for his failure to submit the physician's affirmation, which he has possessed since 1995,on the motion to "restore the action." Rather, plaintiff merely states that the affirmation was notsubmitted "for reasons that are not clear f[ro]m the record."