| Perez v City of New York |
| 2012 NY Slip Op 03944 [95 AD3d 675] |
| May 22, 2012 |
| Appellate Division, First Department |
| Giovonnie Perez et al., Appellants, v City of New York etal., Respondents, et al., Defendant. New York City Housing Authority, Third-PartyPlaintiff-Respondent, v Chatterjee International Contracting Corp. et al., Third-PartyDefendants-Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for City of New York and NYC Department of Housing Preservation and Development,respondents. Law Offices of Charles X. Connick, P.L.L.C., Mineola (Gerald T. Murphy, Jr. of counsel),for New York City Housing Authority and Chatterjee International Contracting Corp.,respondents. Law Office of Lori D. Fishman, Tarrytown (Louis H. Liotti of counsel), for Pacific IronWorks, Inc., respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 14, 2011,which denied plaintiffs' motion for an order declaring the dismissal of the action null and void orvacating the dismissal, and substituting plaintiff Perez as administrator in place of plaintiffVelez, deceased, and granted defendants' separate cross motions to the extent they soughtdismissal of the complaint pursuant to CPLR 3216, 3126 (3) and 1021, unanimously affirmed,without costs.
The action, commenced in 2001 by plaintiff Velez individually and as natural guardian ofplaintiff Perez, arose out of a playground accident that occurred in 1999, when plaintiff Perezwas 13 years old. In an order dated April 1, 2004, the IAS court stated that a motion by one [*2]defendant to dismiss the action as time-barred was granted as toplaintiff Velez, but inadvertently recited at the end of the order that the motion was denied. Velezdied on May 12, 2005, by which time Perez had reached the age of majority and had capacity toappear for himself in the action (see CPLR 105 [j]; 1201). Perez did not inform hiscounsel of Velez's death until in or about March 2007.
Meanwhile, on November 7, 2005, the court had issued a notice pursuant to CPLR 3216demanding that plaintiffs resume prosecution and file a note of issue within 90 days, and warningthat default on the demand will serve as a basis for the court to dismiss the action on its ownmotion. Plaintiffs' counsel obtained two extensions of the deadline, but on June 4, 2007, the casewas marked dismissed by the court pursuant to CPLR 3216 for failure to prosecute. PlaintiffPerez was eventually appointed administrator in November 2008, and moved in October 2010,three years after the order of dismissal, for an order of substitution and to have the case restoredto the calendar. Plaintiff moved on grounds that the dismissal order was null and void. In thealternative, plaintiff maintained that he had shown justifiable excuse for the delay and ameritorious cause of action pursuant to CPLR 3216 (e).
Assuming arguendo that Velez's claim was not dismissed prior to her death, plaintiff Perez'sexcessive delay in seeking substitution after her death clearly warranted dismissal of the action asto Velez pursuant to CPLR 1021 (seeSanders v New York City Hous. Auth., 85 AD3d 1005 [2011]; Washington v Min Chung Hwan, 20AD3d 303 [2005]; Palmer v Selpan Elec. Co., 5 AD3d 248 [2004]). Further, theaction was properly dismissed as to plaintiff Perez for failure to prosecute pursuant to CPLR3216 (a), and he failed to show a justifiable excuse for the failure to file the note of issue aftertwo extensions were granted. It is settled that "the death of a party stays the action as to him orher pending the substitution of a legal representative, and any determination rendered withoutsuch a substitution is generally deemed a nullity" (Hicks v Jeffrey, 304 AD2d 618[2003]; see also Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d819, 820 [1985]; see CPLR 1015). Although the 90-day notice was issued after Velezdied, neither the other parties nor the court were informed of her death for over five years.Further, plaintiffs' counsel continued to participate in the proceedings after Velez's death, andplaintiff Perez has failed to provide any reasonable excuse for his failure to communicate withhis counsel for extended periods of time, or for the two-year delay in seeking substitution after hewas finally appointed administrator of his mother's estate. Under all the circumstances, the courthad jurisdiction to dismiss plaintiff's claims pursuant to CPLR 3216 (a) for failure to prosecute,and his motion to vacate pursuant to CPLR 3216 (e) was properly denied (see Sanders,85 AD3d at 1006; Anjum vKaragoz, 48 AD3d 605, 605-606 [2008]; Washington, 20 AD3d at 305).
Alternatively, the court properly granted the cross motions to dismiss pursuant to CPLR 3126(3), since the extended failure to comply with discovery orders warrants an inference of willfulnoncompliance (see Bryant v New YorkCity Hous. Auth., 69 AD3d 488 [2010]; Henry Rosenfeld, Inc. v Bower &Gardner, 161 AD2d 374, 375 [1990]), and the extensive delays in [*3]prosecuting the 11-year-old case have prejudiced the ability ofdefendants and third-party defendants to defend the action (see Almanzar v Rye Ridge RealtyCo., 249 AD2d 128 [1998]). Concur—Mazzarelli, J.P., Friedman, Catterson, Richterand Manzanet-Daniels, JJ.