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Juliette Dejoie Cadichon, et al v. Thomas Facelle M.D.

November 21, 2011

JULIETTE DEJOIE CADICHON, ET AL., APPELLANTS,
v.
THOMAS FACELLE M.D., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Pigott, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In July 2003, plaintiffs Juliette and Jean Cadichon commenced a medical malpractice against defendants Thomas Facelle M.D., Good Samaritan Hospital and Montefiore Medical Center for injuries allegedly sustained by Mrs. Cadichon during surgery in July 2002. The trial court executed a preliminary and compliance conference order in August 2003 and May 2004, respectively, concerning the parties' discovery obligations and examinations before trial.

After plaintiffs commenced a separate medical malpractice action against defendant Dr. May -- which was consolidated with the action against the other defendants in May 2006 -- plaintiffs and Dr. May agreed to their discovery obligations in an April 2005 preliminary conference order. Once the cases were consolidated in May 2006, another compliance conference order was prepared, setting forth the parties' discovery obligations, directing that all examinations before trial be completed by September 13, 2006, and stating that plaintiffs were to file their note of issue and certificate of readiness by November 2006.

At issue on this appeal is the May 3, 2007 stipulation. At the time this stipulation was executed by the trial court and the parties, plaintiffs had complied with all discovery obligations, and Mrs. Cadichon had been deposed twice, once before and once after the consolidation of the actions. The order directed that Dr. Facelle be deposed by June 26, 2007; Dr. May on July 10, 2007; and representatives of Good Samaritan Hospital and Montefiore Medical Center by August 21, 2007, with plaintiff providing the hospital defendants with 30 days notice as to the names of the representatives plaintiffs wished to depose. The stipulation also directed plaintiffs' counsel to file the note of issue on or before December 27, 2007.

Also served upon and signed by plaintiffs' counsel was a "demand for service and filing of note of issue" which states as follows:

"THE COURT DEMANDS, PURSUANT TO CPLR 3216, THAT YOU RESUME PROSECUTION OF THE ABOVE ENTITLED ACTION, AND THAT YOU SERVE AND FILE A NOTE OF ISSUE [AS PER THE ANNEXED ONE PAGE STIPULATION DATED 5/3/07, I.E., BY 12/27/07]*fn1 AFTER THE RECEIPT OF THIS DEMAND.

"YOUR DEFAULT IN COMPLYING WITH THIS DEMAND WITHIN THE 90-DAY PERIOD WILL SERVE AS A BASIS FOR THE COURT, ON ITS OWN MOTION, TO DISMISS THE ACTION FOR UNREASONABLY NEGLECTING TO PROCEED" (emphasis supplied).

December 27, 2007 came and went. Plaintiffs did not file their note of issue by that date, allegedly because defendants had still not been deposed. Unbeknownst to the parties, the case was dismissed on December 31, 2007 and, for the first few months of the new year, plaintiffs attempted to schedule deposition dates, the court having failed to inform any of the parties of the case's dismissal. Counsel for Dr. Facelle agreed to produce his client for a deposition on April 7, 2008. Around that same time, in March 2008, Good Samaritan Hospital moved to dismiss the action, but those papers were returned to it by the Clerk's Office on the ground that the motion was moot. This was the earliest that any of the litigants had learned that the matter had been dismissed.

Supreme Court denied plaintiffs' motion to vacate the dismissal pursuant to CPLR 3216, and the Appellate Division, in a 3-2 decision, affirmed. Plaintiffs appeal as of right on the two-Justice dissent. We previously determined that the Appellate Division order should be deemed the final appealable paper for purposes of this Court's jurisdiction (15 NY3d 877, 879), and we now reverse.

CPLR 3216(a) provides that:

"[w]here a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleadings on its terms."

A case cannot be dismissed pursuant to CPLR 3216(a), however, unless a written demand is served upon the "the party against whom relief is sought" in accordance with the statutory requirements, along with a statement that the "default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed" (CPLR 3216 [b] [3]).

Here, the action was apparently "dismissed" on December 31, 2007. But there is no order of dismissal to that effect, as evidenced by the parties' conduct in scheduling depositions as if the case were still active. Defendants point to the stipulation, claiming that once the plaintiffs failed to file their note of issue, the trial court was within its right to dismiss the action. It is evident from the 90-day demand and the dictates of CPLR 3216 that the plaintiffs' failure to comply with the demand would "serve as a basis" for the trial court, on its own motion, to dismiss the action. That is not what occurred here; there is no evidence in the record that the trial court made a motion to dismiss the action in this case, and it is apparent that the case was dismissed based upon plaintiffs' failure to comply with the May 3, 2007 stipulation and 90-day demand in doing so. Indeed, there was apparently no "order" of the court dismissing the case and, at best, only a ministerial dismissal of the action without benefit of further judicial review even though the order provided that it only "will serve as a basis for the court on its own motion . . ." to take further action.

Although inapplicable to this case, the July 7, 2008 amendment to CPLR 205(a),*fn2 which, as relevant here, states that where a dismissal is one for neglect to prosecute, "the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation," underscores that dismissal of a claim under circumstances such as this involves judicial involvement. It is evident from this record that the case was ministerially dismissed, without notice to the parties, without the entry of any formal order by the court dismissing the matter.

It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that "[l]instigation cannot be conducted efficiently if deadlines are not taken seriously . . . [and] that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005] citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). But where, as here, the case proceeds to the point where it is ...


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