Fujah v. V-M Auto Refinishing Corp.

192 Misc. 2d 170, 745 N.Y.S.2d 418, 2002 N.Y. Misc. LEXIS 993
CourtNew York Supreme Court
DecidedJuly 15, 2002
StatusPublished
Cited by3 cases

This text of 192 Misc. 2d 170 (Fujah v. V-M Auto Refinishing Corp.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fujah v. V-M Auto Refinishing Corp., 192 Misc. 2d 170, 745 N.Y.S.2d 418, 2002 N.Y. Misc. LEXIS 993 (N.Y. Super. Ct. 2002).

Opinion

OPINION OF THE COURT

Martin E. Ritholtz, J.

Should the failure of plaintiffs’ counsel to appear at a scheduled compliance conference result in the dismissal of this action? What are the circumstances which would warrant the vacatur of such a default dismissal order?

[171]*171Prior to addressing the specifics of this case, it is important to note the present legal basis and purpose of a compliance conference.

CCJP, DCM, and the Purpose of a Compliance Conference

In March 1999, the Unified Court System launched a Comprehensive Civil Justice Program (CCJP), which featured a system of Differentiated Case Management (DCM), wherein all cases are screened from the onset and assigned a specific track — expedited, standard or complex — with designated time frames for milestone events. The purpose of this initiative as set forth in a 31-page report was to abandon an inefficient system of “merely assigning and processing cases,” and to replace instead one which would “affirmatively manage them,” incorporating DCM procedures, which require tracking of each case based on its complexity, followed by “rigorous judicial monitoring” throughout the life of the case to ensure compliance with key milestones. (See, <http://www.courts.state.ny.us/civll4.htm> [accessed July 30, 2002].) In accordance with the aforementioned initiative, the Uniform Rules for Trial Courts were amended on April 30, 1999 to include a new rule, entitled “Differentiated Case Management” (see, 22 NYCRR 202.19). Said rule provides for the following milestones: (1) Preliminary Conference — to be held within 45 days after the filing of the request for judicial intervention (RJI), (2) Compliance Conference — to be held no later than 60 days before the filing of the note of issue, and (3) Note of Issue — to be filed: (a) no later than eight months after the filing of an RJI on an “expedited” track; (b) no later than 12 months after the filing of an RJI on a “standard” track; and (c) no later than 15 months after the filing of an RJI on a “complex” track. The purpose of the “Compliance/Settlement Conference” (the name originally proposed in the CCJP Report at page 10, and hence the name of this part, Le., CSCP), as set forth in the new rule, is to “monitor the progress of discovery, explore potential settlement, and set a deadline for the filing of the note of issue” (see 22 NYCRR 202.19 [b] [3]).

Factual Background of this Case

Plaintiffs commenced this action on March 29, 1999 to recover money damages for personal injuries allegedly sustained on March 23, 1998, as a result of a fall on defendant’s sidewalk. The defendant served an answer on June 2, 1999, and simultaneously therewith served plaintiffs with a demand for bill of particulars and other discovery demands. Plaintiffs failed to respond within 30 days, nor did they assert objections to any of the items in the demand, as required by CPLR 3042 (a).

[172]*172It appears that on August 31, 2000, defense counsel wrote to plaintiffs’ attorney requesting compliance with the demands of June 2, 1999 in a good faith effort to avoid motion practice, in accordance with 22 NYCRR 202.7. There being no response to that letter, defendant moved pursuant to CPLR 3126 (3) to dismiss plaintiffs’ complaint for failure to respond to defendant’s demand for a bill of particulars. Plaintiffs defaulted on the motion, and in an order dated November 17, 2000, Honorable Martin J. Schulman conditionally dismissed the complaint, unless plaintiffs served “a verified bill of particulars within 30 days from service of a copy of this order.”

As a result of the RJI filed with the motion to dismiss, a preliminary conference was scheduled to be held on November 14, 2000. Plaintiffs’ counsel failed to appear on said date, and the conference was adjourned to November 28, 2000. A courtesy letter was sent by defense counsel to plaintiffs’ attorney advising him of said adjournment.

On November 28, 2000, plaintiffs’ attorney appeared at the preliminary conference, and stipulated in writing to serve a bill of particulars on or before 60 days, which stipulation was “so ordered” by Honorable Martin J. Schulman. When plaintiffs failed to comply with the preliminary conference order, a copy of Honorable Schulman’s conditional dismissal order of November 17, 2000 with notice of entry was served on plaintiffs’ counsel on March 22, 2001. Again there was no compliance, and no motion was made by plaintiffs’ counsel to vacate Honorable Schulman’s order.

On June 21, 2001, defense counsel appeared for a compliance conference which had been set down in the preliminary conference order. Plaintiffs’ counsel failed to appear at said conference, and upon the affidavit of defense counsel, dated June 20, 2001, indicating the repeated defaults of plaintiffs, the court issued an order, dismissing the complaint, and the dismissal was noted upon the calendar. As stated in the order of the court, dated June 21, 2001, said dismissal was authorized pursuant to 22 NYCRR 202.27, and pursuant to the conditional dismissal order of Honorable Schulman, dated November 18, 2000. It appears that on July 12, 2001, a copy of the aforementioned order with notice of entry was served on plaintiffs’ counsel.

Plaintiffs’ Request to Vacate the Dismissal

More than nine months elapsed from the date of service of the dismissal order before plaintiffs moved herein by order to show cause to vacate said dismissal. In the instant motion, plaintiff Aderemi Fujah contends that on October 27, 1999, he was arrested by federal marshals for alleged immigration viola[173]*173tions and. was initially detained in Maryland, and subsequently in Hamilton, Georgia, until his release from federal immigration detention in November of 2001. Plaintiff argues that this incarceration “created practical difficulties beyond my control which makes compliance with the discovery deadlines of the defendant impossible.” In a supporting affirmation, plaintiffs’ counsel claims that on November 28, 2001 at the preliminary conference he had a conversation with defense counsel “explaining to him my predicament regarding plaintiff’s detention and the delay in complying with defendant’s discovery demands.” Plaintiffs’ attorney further argues that “my failure to attend the Compliance Conference on June 21, 2001 and comply with discovery demands from the defendant was due to my frustration arising out of my inability to comply with the order of the Court due to plaintiff’s incarceration * * * my absence was not meant to disobey or disrespect the order of the Court. Such tardiness is deeply regretted.” Based on the foregoing and upon an affidavit of merits, plaintiffs seek to vacate the dismissal of this action, pursuant to CPLR 5015 (a) “in the interest of justice.”

The Defense Opposition

The defendant vigorously opposes the motion based on the following cogent argument: “At no time did plaintiff’s attorney ever advise this court that plaintiff was in any form of detention. At no time did counsel ever request an extension of time in this matter.” According to defendant, plaintiffs’ counsel “totally ignored the directives of this Court,” and has utterly failed to establish a reasonable excuse for their defaults.

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Cite This Page — Counsel Stack

Bluebook (online)
192 Misc. 2d 170, 745 N.Y.S.2d 418, 2002 N.Y. Misc. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fujah-v-v-m-auto-refinishing-corp-nysupct-2002.