| Campbell v New York City Tr. Auth. |
| 2013 NY Slip Op 05553 [109 AD3d 455] |
| August 7, 2013 |
| Appellate Division, Second Department |
| Curl Campbell, Respondent, v New York CityTransit Authority, Appellant. |
—[*1] Kazmierczuk & McGrath, Forest Hills, N.Y. (John P. McGrath of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Sherman, J.), dated February 25, 2011,which denied its motion to dismiss the complaint for failure to prosecute based on thedoctrine of laches, or, in the alternative, for summary judgment dismissing the complaint,or to strike the complaint pursuant to CPLR 3126.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the defendant's motion which wasto dismiss the complaint for failure to prosecute based on the doctrine of laches. Pursuantto CPLR 3216, an action may not be dismissed for a delay in prosecution unless a writtendemand has been served on the party prosecuting the action to serve and file a note ofissue within 90 days after receipt of the demand (see Chase v Scavuzzo, 87NY2d 228, 230 [1995]; Arroyo v Board of Educ. of City of N.Y., 110AD3d 17 [2013]; Docteur v Interfaith Med. Ctr., 90 AD3d 814, 815 [2011]).The procedural device of dismissing a complaint for undue delay is a legislative creation,and courts do not possess the inherent power to dismiss an action for general delay wherethe plaintiff has not been served with a 90-day demand to serve and file a note of issuepursuant to CPLR 3216 (b) (see Chase v Scavuzzo, 87 NY2d at 233; AirmontHomes v Town of Ramapo, 69 NY2d 901, 902 [1987]; Cohn v BorchardAffiliations, 25 NY2d 237, 248 [1969]; Arroyo v Board of Educ. of City ofN.Y., 110 AD3d 17 [2013]). Since the plaintiffwas never served with a 90-day demand, the Supreme Court had no authority to dismissthe complaint due to her alleged unreasonable and prejudicial delay in prosecuting theaction (see Chase v Scavuzzo, 87 NY2d at 233; Airmont Homes v Town ofRamapo, 69 NY2d at 902; Arroyo v Board of Educ. of City of N.Y.,110 AD3d 17 [2013]; Docteur v Interfaith Med.Ctr., 90 AD3d at 815; Hodge v New York City Tr. Auth., 273 AD2d 42, 43[2000]).
The Supreme Court also properly denied that branch of the defendant's motion whichwas for summary judgment dismissing the complaint. A defendant who moves forsummary judgment in a slip-and-fall or trip-and-fall case has the initial burden of makinga prima facie [*2]showing that it did not create thehazardous condition which allegedly caused the fall, and did not have actual orconstructive notice of that condition for a sufficient length of time to discover andremedy it (see Levine vAmverserve Assn., Inc., 92 AD3d 728 [2012]; Amendola v City of NewYork, 89 AD3d 775 [2011]; Tsekhanovskaya v Starrett City, Inc., 90 AD3d 909, 910[2011]; Pryzywalny v NewYork City Tr. Auth., 69 AD3d 598, 599 [2010]). In order to meet its burden onthe issue of lack of constructive notice, the defendant must offer some evidence as towhen the accident site was last cleaned or inspected prior to the plaintiff's fall (seeLevine v Amverserve Assn., Inc., 92 AD3d at 728; Tsekhanovskaya v StarrettCity, Inc., 90 AD3d at 910; Amendola v City of New York, 89 AD3d at 775;Pryzywalny v New York City Tr. Auth., 69 AD3d at 599). A movant cannotsatisfy its initial burden merely by pointing to gaps in the plaintiff's case (seeTsekhanovskaya v Starrett City, Inc., 90 AD3d at 910; Amendola v City of NewYork, 89 AD3d at 775; Cummins v New York Methodist Hosp., 85 AD3d 1082,1083 [2011]). Here, the defendant failed to establish, prima facie, that it lackedconstructive notice of the hazardous condition which allegedly caused the plaintiff's fallbecause it offered no evidence as to when the subject stairway was last cleaned orinspected (see Tsekhanovskaya v Starrett City, Inc., 90 AD3d at 910;Amendola v City of New York, 89 AD3d at 776; Pryzywalny v New YorkCity Tr. Auth., 69 AD3d at 599). Since the defendant failed to meet its prima facieburden, we need not consider the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Finally, the drastic remedy of striking the complaint pursuant to CPLR 3126 is notwarranted in this case because the defendant failed to make a clear showing that theplaintiff has engaged in a willful and contumacious pattern of noncompliance withdisclosure requests or court-ordered discovery (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923[2012]; Docteur v Interfaith Med. Ctr., 90 AD3d at 815; Polsky v Tuckman, 85 AD3d750, 751 [2011]). Eng, P.J., Mastro, Dillon, and Sgroi, JJ., concur.