Defendant in a personal injury negligence action appeals from an order denying his motion to dismiss the complaint for failure to prosecute. The motion was made under the then section 181 of the Civil Practice Act (now CPLR 3216).
The accident occurred September 7, 1959, although both briefs refer to it as having occurred in 1957. The action was begun November 11, 1960, and issue was joined December 13, 1960. The last activity in the case prior to the present motion was when, on March 9, 1962, the examinations before trial were completed. Defendant moved to dismiss for neglect on August 28, 1962.
The accident involved a two-car intersection collision in Patchogue, Long Island. Plaintiff wife, a passenger in one of the automobiles, stated in her affidavit of merits that "I am informed that the light was green for us at all times". Her injuries as described in the bill of particulars are bruises, abrasions and lacerations, together with the customary polysyllabic references to accompanying wide-ranging physical and
The alleged excuse for delay is, first, that there was not too much delay since the examinations before trial were not completed until March 9, 1962 and, second, that plaintiffs were waiting for court consolidation to take effect on September 1, 1962 so that the case could be transferred to a court of lesser monetary jurisdiction instead of remaining in the Supreme Court. In resisting the motion to dismiss, plaintiffs offered to stipulate to transfer the action to the Civil Court of the City of New York and to notice it for trial immediately. Special Term in denying the motion referred to this offer.
The excuse for delay is insufficient, as is the affidavit of merits. As a consequence, the order should be reversed and the action dismissed. Because there is concurrently a substantial number of similar appeals and evident difficulty in understanding the principles applicable, comment is merited.
In the first place, the newly-enacted rule 3216 of the Civil Practice Law and Rules is substantially similar to its predecessor section 181 of the Civil Practice Act.
The overriding motivation for dismissing neglected actions is that court calendars are heavily burdened, especially certain
1. Extent of Delay
Any unreasonable delay, depending upon the nature of the case, the degree of merit, and the particular difficulties which the litigating plaintiff faced, may support dismissal. And for this purpose no particular period of avoidable delay is required; but with relation to the particular case it should be deemed substantial. In one case, to warrant dismissal, delay may be a matter of months and in another, years (see, e.g., White v. Good Operating Corp., 19 A.D.2d 802 [73 months' delay in negligence action]; Noble v. Hayakawa, 16 A.D.2d 616 [20 months' delay in action on note]; Hardware Mut. Cas. Co. v. Rosenberg, 3 A.D.2d 988 [14 months' delay on assigned personal injury action under Workmen's Compensation Law]; and, of course, rule 156 of the Rules of Civil Practice, omitted from the Civil Practice Law and Rules, entitled a defendant to move to dismiss the complaint after delay of six months from joinder of issue
2. Law Office Failures
Excuses for avoidable delay are insufficient which merely lay the delay at the door of plaintiff himself, his lawyer of record, trial counsel, other associated counsel, or employees of any of the lawyers (e.g., Wilson v. Whitehall Hotel Corp., 20 A.D.2d 525, decided herewith; Maloney v. Springfield Development Co., 20 A.D.2d 526, decided herewith; Milligan v. Hycel Realty Corp., 20 A.D.2d 527, decided herewith; Burke v. City of New York, 18 A.D.2d 898; Cronin v. City of New York, 18 A.D.2d 995; Benjamin v. Chock Full of Nuts, 18 A.D.2d 906; Waldman v. Cedar Mgt. Corp., 11 A.D.2d 646; Fischetti v. 242 East 19th St. Corp., 4 A.D.2d 867; Moshman v. City of New York, 3 A.D.2d 825). Indeed, shifting the cause of avoidable delay from one to another does not make the neglect any the less. Besides, such shifting makes it too easy to avoid ultimate responsibility and too difficult to determine the actual cause of the delay.
3. Settlement Negotiations
That settlement negotiations have occurred between representatives for defendant and plaintiff is sometimes a reasonable excuse for not taking any particular action while the negotiations are pending. The excuse, however, ceases to have effect within a brief interval after the last communication (e.g., Wilson v. Whitehall Hotel Corp., 20 A.D.2d 525, supra, decided herewith; Krell v. Pelham Syndicate, 14 A.D.2d 845; Patron v. 112 East 111th St. Corp., 14 A.D.2d 843; Trapani v. Samuels, 3 A.D.2d 861 [2nd Dept.], mot. for lv. to app. den. 3 N.Y.2d 931; Fast v. Meenan Oil Co., 1 A.D.2d 889 [2nd Dept.]; Mann v. Nednil Terrace Corp., 35 Misc.2d 182 [App. Term, 1st Dept.]; cf. Maizonet v. Lee Properties, 11 A.D.2d 667).
4. Other Pretrial Activity
Pretrial activity in the nature of discovery proceedings and motion practice may be, of course, an excuse for not noticing the action for trial immediately (cf. Carvel Dari-Freeze Stores v. Lukon, 18 A.D.2d 700, modfg. 219 N.Y.S.2d 716 [MUNDER, J.], mot. for lv. to app. dsmd. 12 N.Y.2d 1067; De Long Corp. v. J. Rich Steers, Inc., 10 A.D.2d 705). However, under the new rule with respect to the filing of statements of readiness in personal injury and death actions in negligence even this excuse does not suffice to justify any but a short delay (Supreme Court
5. Statute of Limitations
That the Statute of Limitations may have run is a double-edged consideration. While it may be helpful sometimes in discounting delays, more often the running of the statute will re-enforce the view that the action should be dismissed (e.g., Reilly v. Mirailh, 20 A.D.2d 526, decided herewith; Smallen v. Sherman Sq. Hotel Corp., 20 A.D.2d 527, decided herewith; Mercer v. Portsmouth Associates, 18 A.D.2d 614; and many of the other short-statute tort cases cited herein in which the court did not comment on the obvious fact that the statute had run; contra, Parshall v. Grand Leasing Corp., 17 A.D.2d 953 [2nd Dept.]). Indeed, the statute is a legislative expression of policy fixing the time within which claims have become too stale for litigation. Surely this should be persuasive that even a claim put in litigation may have become too stale to litigate. The only saving difference may be that defendant knows he is being sued. Otherwise, the availability of physical evidence, the recollection of witnesses, and even the availability of witnesses, may have been seriously impaired by the lapse of time — a lapse intended to be measured by the applicable Statute of Limitations.
6. Defendant's Duty
In considering the duty of plaintiff to prosecute an action, it is rare, if ever, that recrimination may suffice as an excuse for delay, namely, that defendant was himself neglectful or neglected to press plaintiff to prosecute. It is not in the nature of most defenses or defendants for defendants to press for prosecution. The duty of prosecuting the action rests on the one who brings it, not on the one who defends it (Reilly v. Mirailh, 20 A.D.2d 526, supra, decided herewith; Hutnik v. Brodsky, 17 A.D.2d 808; Balaka v. Stork Rest., 3 A.D.2d 857 [2nd Dept.]; contra, Carbonel v. Ocasio, 41 Misc.2d 33, affd. 19 A.D.2d 799 [2nd Dept.]). There may, of course, be exceptions.
7. Plaintiff's Belated Activity
Lastly, it is no excuse for plaintiff to become active on the eve of a motion to dismiss for neglect or to become active thereafter. For this reason the filing of a note of issue to place the action on the calendar is not, by itself, an excuse for the delay charged in the motion. This has been the rule for many years in this Department. (E.g., Valentin v. Ina Holding Corp., 20 A.D.2d 525,
8. Disabling Circumstances
Thus far, proffered excuses not sufficient to justify delay have been discussed. There are circumstances beyond the control of plaintiff and his lawyer, including disabling personal catastrophies that may prevent quick recovery from the delays initiated by such catastrophies (e.g., Wolf v. Associates Discount Corp., 12 A.D.2d 241; Zeiger v. Kew Towers, 8 A.D.2d 827 [2nd Dept.]. Cf. Keenan v. Waring, 12 A.D.2d 601). There may be time-consuming procedures in the litigation, such as the taking of deposition in foreign countries under difficult circumstances, or extended investigation of critical facts, which may explain or justify delay. And, of course, delays in which defendants are directly involved or contributory may excuse delay (e.g., Rosenstein v. Rothenberg, 9 A.D.2d 663; Barnard v. Postle, 12 A.D.2d 670; cf. Gonzalez v. Rosenblatt, 13 A.D.2d 770).
9. Parallel Litigation
There may be parallel litigation which should be determined before the instant action is prosecuted (e.g., De Long v. J. Rich Steers, Inc., 10 A.D.2d 705, supra; but cf. Grottano v. New York Herald Tribune, 13 A.D.2d 638).
There are undoubtedly other good and sufficient excuses for delay.
10. Affidavit of Merits
It was earlier noted that there is an intimate relationship between the merit of an action and the fact that it has been neglected. It is for this reason that in defending a proper
The affidavit of merits is important, not only to show that plaintiff has a viable cause of action, but also because the degree of merit is always revealing on whether there has been a deliberate neglect of an action of little or no value, or whether the delay has another explanation. So, too, where plaintiff is the representative of a deceased person or of one incompetent to make his own affidavit, there must still be merit shown by evidentiary facts. Then the evidentiary facts will not be available from the principal actors but, in the very logic of the situation, must be available somewhere or somehow, in the same manner by which plaintiff expects to prove his case upon a trial (e.g., Swirsky v. Emanuel Arms, 20 A.D.2d 524, decided herewith; Cavac Compania, etc. v. Stanley, 12 A.D.2d 461).
To be sure, plaintiff has no burden to establish merit unless there has been delay. Given delay, he has a double burden: to justify the delay and to lend credit to the proffered justification by establishing merit. It stands to reason that the greater the merit of the case the more excusable the delay and the greater would be the injustice of dismissal. So, a short delay may still require a showing of merit, but not nearly as much as a longer delay. The more slender the excuse for the delay, the greater the need to establish merit. On the other hand, ample explanation for the delay requires less of a showing of merit, although still a showing. The key, to repeat, is that the delayed action is an action suspect as to its merits. Hence, the need both to explain the delay and develop the merits. And, of course, in this complex of factors, prejudice to defendant is material, but not essential (White v. Good Operating Corp., 19 A.D.2d 802, supra; Coban v. Wil-Sade Realties, 19 A.D.2d 605; Garcia v. Sentry-Norden Oil & Heating Co., 18 A.D.2d 789; semble contra, Keller v. National Auto Renting Co., 10 A.D.2d 578 [2nd Dept.]).
But there should be no misunderstanding. Even an action of great merit may be forfeited by prolonged delay. It is the right of a defendant to be free of a case which is not diligently
It might be said that on the foregoing analysis it is difficult to overcome the effect of an avoidable delay. The inference would be quite correct. And this is as it should be. One who imposes on a defendant the burden and expense of litigation has assumed a serious responsibility. One who would claim time from heavily-burdened and costly judicial facilities has an even greater responsibility. Nowhere is there reason or occasion to create opportunities for the nuisance action, the nuisance settlement, or the strike action.
It must be repeated that there is no intention and there is no occasion to lay down rigid rules or particularize the circumstances controlling the determination of motions to dismiss for failure to prosecute. The varying of the circumstances is too great. But general principles which have influenced the court are properly, and, apparently, necessary to be indicated.
The present case is illustrative of some of the factors discussed. The action was not brought until a year after the accident. It then wended its leisurely way until the Spring of 1962, after which plaintiffs rested on their oars for about a half-year, a period too long in the light of the lack of merits and the lapse of time since joinder of issue. The excuse supplied, concerning transfer to the Civil Court, assuming credibility, is all but irrelevant (see Nelson v. Sindos Realty Corp., 19 A.D.2d 604). The answer to the neglect is found in the triviality of the injuries sustained in this accident of four years ago. Moreover, the affidavit of merits contains nothing but hearsay reference to the traffic lights without stating who it is that says the lights were green and is ready to so swear upon the trial. In sum, the excuse, for this delay of more than two and a half years since joinder of issue is insufficient and the affidavit of merits is completely inadequate.
Accordingly, the order denying defendant's motion to dismiss plaintiffs' action for failure to prosecute should be reversed on the law, the facts, and in the exercise of discretion, with costs, and the motion granted, with costs.
Order, entered on October 9, 1962, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs.