Watts v. Belskiy

Watts v Belskiy 2025 NY Slip Op 32311(U) June 26, 2025 Supreme Court, Kings County Docket Number: Index No. 504058/2019 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 06/30/2025 12:40 PM INDEX NO. 504058/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 06/30/2025

Atan IAS Trial Term, Part75 ofthe Supreme Court of the State of New York, Kings County, at the Courthouse located at 360Adams Street, Brooklyn, New York on the 26th day of June.2025 PRES ENT: HON.ANNEJ. SWERN, lS.C.

YONATON WATTS and IK.ENNAUDEMBA; DECISION & ORDER InliexNo.: 504058/2019 Plaintiff, CalendarNo.: 51 .-agains(- .Motion Seq.: 007, ·... 008 & 009 ALEK$EY BELSKIY, HAYDEE BATEMAN and JEAN CARLOS VANDERHORST Defendants.

Recitation of the following papers as required by CPLR .2219(a): - Papers N:u_mbered MS0.07 Notice of Motion to Dismiss,Affirmation, and Exhibits (NYSCEF 94-107) .................. ,......................... , .............. ,..... 1, 2 MS008&009 Notice of Cross-Mqtions to Restore arid iri Opposition,.Affirmation and Exhibits · in Opposition (MS 008 &_009) (NYSCEF109-114) ...................... ,. .3., 4, 5, 6 MS007-009 Defend'111t's Reply Affirmations and in Opposition to Cross,;Motlons(NYSCEF 115-116) ....... ,.............................7, 8 Upcm the foregoing papers and after oral qrgu_ment, the decision and order ofthe CoUrt is asfollows: Defendant Haydee Bateman.has moved this Courtfor an order pursuant CPLR § 3216 dismissing plaintiff Watts' complaint Watts has cross:-moved for an order restoring this case to the active calendar; The procedural history of this case involye& extensive motion practice germane to this. Court's determination of the motions.

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Procedural History This is _an _action was ,cqmmenced by plc.rintiff Ikemia Uclemb~ to r(:cover dam.ages fot· personal injuries arising out of a motor vehicle accident on 7/17/201 7. The actioncommenced by plaintiff Yoiiatan Watts at1sirtg out of the same acddent was commenced under Index #520020/2019 l:Uld consolidated ii;ito tllis action by an order dated 1/6/2020. A compliance conference and final pre~note ofissue. conference. were held on 2/20/2020 and 12/18/2020, respectively, following; the conscilidation. On 12/18/2020, the Court:issue4 an order-extending· plaintiffs'·•time to· file the Note of-Issue on··or before 6/25/2021.

By at1 order dated 7/23/2021, the motionfot-summary judgment filed by defendant Belskiy on 2/18/2021 was granted on default. Udemba moved:to vacate the. defauit order on 3/24/2022. The motion was denied by an order tiat¢d l/12/2023.

TheCouit issuecl a secop:d final pre-note ofissue order dated 5/31/2022 directing ·plaintiffs· to file a Note·,oflssue· on or before 11/18/2022 or·he subjectto sanctions per·cPLR- § 3126. .Defendant ackPowledges that plaintiff's.Note: of.Issµe filed. on 11/14/2022 was rejected by the clerk (see also NYSCEF'''Comm ents"). Instead of rooving for an ord~r per CPLR § 3126 based on plaintiff's :failure. to timely re-file the. Note-of ls!,me, Bateman moved for sumina:ry Judgment_.six mo_nths la,ter on ~/19/2023.. The motion was denied by @ order ·dated .9/.19/2024 and a compliance conference was -scheduled for 10/31/2024. Plain,ti:ff . did not appear . .for the compliance conference ill" the Central Compliane:e Part an4 this action was· administratively dismissed. This action was .discontinued by .·c9-plaintif.f l.Jdem.'ba· on 4/23/2025.

Ort 2/S/202S:, defendant served this motion to dismiss seeking an order dismissing Watts' complaint based on.(l}the failure of plaintiff's-attorney s to appear on 10/31/2024 fodhe compliance.confer ence ot,in the alternative, (2) CPLR § 3216:for failµre to file t}leNote_of

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Issue. Plaintiff has served two cross-motions for an order restoring this action to the active calendar of the Court and scheduling. a compliance conference.

Arguments of Counsel Defendant argues that based on this procedural history and plaintiff's failure to file a Note of Issue in more than two years since the last final pre,.,note of issue order, this action should be dismissed per CPLR § 3216. based on the Court order dated 5/31/2022. Further, during the sixyears this action has· been pending, plaintiff never moved for an extension of time to serve the Note ofissue.

In opposition, plaintiffargues that the motion should be denied because (1) defendant's affirmation of good faith is deficient as it did not include as exhibits the emails concerning their "good faith efforts" to draft a Consent order; (2) defendant did not serve a 90:-Day Notice per CPLR § 3216, and (3) the Court's administrative dismissal on 10/31/2024 did not comply with NYCRR § 202.27. Therefore, the Court must grant plaintiff's cross-motion to restore, as a matter of right, since the dismissal by the Central Cornpliartce Part did not comply with CPLR § 3216 or 22 NYCRR § 202.27. The Court agrees.

Defendanfs motion to dismiss is denied and plaintiff's cross-motions are gtanted in accordartce·with the following: Law and Analysis "When a plaintiff has failed to file a note of issue b_y·a court-ordered deadline, restoration of the action to th¢ active calendar is automatic, unless either a 90-day notice has been served.

pursuant to CPLR 3216 or there has been an order directing dismissal of tlie complaint pursuant to 22 NYCRR 202 .2 7. In the absence of thos~ two. circ.umstances,. the court need not consider whether the piaintiff had a. reasonable excuse. for failing to ti111ely file a note .of issue;~ (Rosario v

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Cummins, 222 AD3d 897, 897 [2d Dept 2023]). It is reversible ertor to deny a motion to restore and e;,ctend the time to file note of isst1e (id at p .898).

a) CPLR § 3216. Want of Prosecution When a party unreasonably neglects to proceed generally in action or otherwise delays its prosecution, or unreasonably fails to file a note of issue, ''the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleadings· on terms. Unless the. order specifies otherwise, the dismissal is not on the merits"(CPLR§ 3216 [a]). However; before the Court issues an order dismissing the action, "conditions precedents" must b~ complied with (CPLR § 3216 [a]).

CPLR §3216 [b] sets forth, in pertirierttpart; the condition precedents as follows: The court or party seeking suchtelief, as>the case may be, shall have servecl awritten·demand by registered or certified inail requiring the party against whom such reliefis sought to resume prosecution of the action and to serve and file a note ofissue within ninety days after receipt of such demand, and further stating 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 or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, ·which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. (CPLR § 3216 [bl[3]), b) 22 NYCRR § 202;27 Defaults If a plaintiff fails to appear- at any scheduled call of the calendar or any conference, the judg(: may "on th~ record and enter an order" dismissing the . action (22.NYCRR . § 202.27 [b]).

Analysis There. is no evidence in the record that defendant or the Compliance Conference Patt complied with the strictures of CP:LR § 3216 13.iJ.d 22 NYC RR § 202.2 7 [bJ.. Irt support of the

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The order dated 5/31/2022 directing plaintiff to file a Note. of Issue on or before l 1/18/2022 or be subject sanctions per CPLR § 3126 is also an insufficient predicate under CPLR § 3216. The 5/31/2022 order cannot be a substitute for the conditionpre·cederttofa 90- Day Notice by either the Court or defendant under the plain wording ofCPLR § 3216.

Defendant's appropriate remedy was to move for an order of dismissal undefCPLR § 3126.

It is noted that this action was the subject of extensive motion practice. and delays, and.

compliance with the final pre;.nofe ofissue orders were apparently held in abeyance until 10/31/2024 pending the determination of each motion. Otherwise, the action would 'have been administratively dismissed sooner: Based on this motion practice, defendant's arguments.

(1) implying that six years is long for this action to be pending and (2) that "plaintiff has failed to follow five separate directives" or serve a motion to extend the time to tile the note ofissue are withoutmerit. (see NYSCEF 115:,r,rs-6).

Therefore, this action is restored to the active calendar of the Court without regard to plaintiff's excuse for failing to appear at the compliance conference on 10/31/2024 (Rosario v Cummin~. 222 AD3d 898; Adams v Frankel, 235 AD3d 816, 817 [2d Dept 2025]; Rosario v Scudi¢ri; 229AD3d 573,574 [2d Dept2024]).

The Court l).as considered the defendant1s remai:n:i:n:g .arguments. and finds same to be withoiit merit.

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Accordingly1 it is hereby ORDERED that defendartfs motionto dismiss this action is denied.in-it~. entiie.ty (MS 007), and it is further ORDBRED that plaintiff's. motions to restore this action to the active calendar of the Cow;-t is granted, andit is furth~r ORDERED that the parties .shall appear.in the-·Final Conference Part on 7/23-/2025 at 9:30 A.M.

This constitutes the decision and order of the Court.

ENTER:

·For·Cterks use only: ·Hon. - . Swern~ J_.S,C.

MG _ __ -Dated: 6/26/2025 MD _ __ Motion seq. # ~ - - ~

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