SUPREME COURT : COUNTY OF CHAUTAUQUA
ALMA R. MORENO,
as Administratrix of the Estate
of IGNACIO RAMOS, JR., Deceased
vs INDEX #H-10899
NORFOLK SOUTHERN CORPORATION,
NORFOLK & WESTERN RAILWAY COMPANY
SEEGERT, & ESTOFF, P.C.
(Michael R. Drumm, Esq.
of Counsel) for Plaintiff
SAPERSTON & DAY, P.C.
(Olney H. Clowe, Esq.
of Counsel) for Defendant
DECISION AND ORDER
Defendant moves for dismissal because plaintiff
attorney has twice ignored 90 day demands it made under
CPLR 3216 to file a note of issue.
Plaintiff sued 6/23/89. Depositions of plaintiff and
defendant's representatives were completed by April 16,
On 1/20/94, defendant sent its first 90 day demand by
ordinary mail. On April 11, 1994, instead of filing a note
of issue or applying for an extension, plaintiff sent
defendant a letter electing to treat the demand as a
nullity because it was not sent by certified mail.
August 5, 1994, defendant again served a 90 day
demand, this time by certified mail, return receipt.
Unfortunately, another technicality erupted; the demand
referred to an action in Erie County Supreme Court.
December 9, 1994, plaintiff finally filed his note of
issue, but, in Erie, instead of Chautauqua County,
requiring a transfer of the note of issue to Chautauqua
December 22, 1994, defendant advised counsel his Note
of Issue was untimely, having been served 126 days after
service by certified mail, and, nearly 11 months after
service of the first 90 day demand.
1. The first demand was by ordinary mail.
2. The second demand was titled in the wrong county.
3. Defendant allegedly made representations that a summary
judgment motion was pending, causing plaintiff to pause
in filing for fear that defendant might be setting a
trap by resorting to an "increasingly common tactic or
strategy for a defendant to wait until after a Note of
Issue and Statement of Readiness have been filed, and
then move for Summary Judgment based upon Affidavits
from witnesses who were not produced for deposition
(example: Majcher v. Federal Machine Co., Index #). The
defendant can then use the Statement of Readiness and
rule 202.21 as a shield; to prevent plaintiff from
deposing the new witness(es) or anyone else with
knowledge to rebut the Motion for Summary Judgment."
This excuse borders on the frivolous! Filing a note of
issue does not prevent discovery on a summary judgment
motion. See ConnellVCityofNY, 102 M2 585, 424 S2 81;
JosephVCityofBuffalo 187 AD2d 946.
Plaintiff's counsel says after he completed
negotiations with a claim agent of defendant on a different
case, he asked the agent about the Moreno case which was
being handled by a different claim agent. On a call back,
plaintiff's counsel was informed that no negotiations on
Moreno was possible because of a pending motion for summary
judgment. In fact, no motion was pending. Plaintiff's
counsel did not call the attorney for defendant nor call
that other claim agent.
Defendant says, "It strains credulity" to suggest that
defendant was attempting to draw plaintiff's experienced
counsel into some procedural trap, particularly since the
comments of the claim agent did not take place until eight
months after the service of the first demand! This Court
Plaintiff's intimation it was tricked into delay has
no merit; Plaintiff has not demonstrated a meritorious
reason for the delay; Plaintiff has failed to describe a
meritorious cause of action; Plaintiff has failed to rebut
defendant's contention there is little or no economic loss.
The closest plaintiff came to suggest any merit to the
claims is counsel's statement that the expert it approached
after the motion thinks there might be a cause of action;
but, there is no affidavit from the expert.
If there was ever a case that deserves dismissal for
failure to respond adequately to a 90 day demand, this is
it. But, should the plaintiff suffer for the conduct or
misconduct of her counsel?
"More recently , however, a widespread assumption
appeared to manifest itself among the courts, appellate as
well as original: that plaintiffs should not, or at least
not always, be penalized for the delays of their
attorneys." DAVIDD.SIEGEL,NEWYORKPRACTICE, Sec. 375.
See NeyrayAlbavPelhamFoods,Inc.,, 46 AD2d 760, 361
NYS2d 14, cited by Professor Siegel, in which the court
"While the papers submitted in opposition
to the motion to dismiss are far from
satisfactory . . . we nonetheless find that
there was no intentional abandonment of the
action nor any undue prejudice worked on the
defendants by the delay incurred. Plaintiff,
under these circumstances, should not be
required to suffer the consequences of his
attorneys' misconduct. (citations omitted)."
The Court required plaintiff's attorney personally to pay a
stated sum to defendants. SIEGEL, supra.
This Court has adopted this approach. See Andersonv.
QualityMarkets, Supreme Court, Chautauqua County, Index
No. H-06421, Feb. 2, 1995; Karrv.QualityMarkets, Supreme
Court, Chautauqua County, Index No. H-O8935, where this
Court said: " [T]he Court is reluctant to deprive plaintiff
of her day in court for actions or nonactions of her
The Court finds no prejudice to defendant.
The motion of defendant is granted, unless within 30
days from the service of a copy of this order, plaintiff's
counsel pays the sum of $1,500.00 to defendant to reimburse
it for counsel fees it has incurred for the two 90 day
notices, and the research and motion to dismiss herein,
provided, however, if defendant's counsel can verify time
and costs in excess of the $1,500.00, this Court will
consider their application for additional funds.
If payment is made as directed, the motion will be
considered denied, without prejudice.
The plaintiff is directed to file a note of issue
within 90 days from the entry of this Decision and Order.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO
FURTHER ORDER SHALL BE NECESSARY.
Dated: October , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of which
the within is a copy, is duly granted in the above entitled
action on the day of October, 1995, and duly entered
in the office of the Clerk of the County of Chautauqua on
the same date.