PMT Delivers a Win – Persistence Pays Off

PMT Delivers a Win - Persisitence Pays Off

Court: Supreme Court of the State of New York
Appellate Division: Second Judicial Department
Case Type: Construction
Caption: Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action).

Index No.: 501699/15
Decision Date: April 29,2020
Decision: Case Dismissed, Affirmed on Appeal

Persistence pays off. A recent case in which the Appellate Court affirmed dismissal of a case demonstrates the advantage that PMT brings to each case.

In Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action), plaintiff brought an action claiming personal injuries as a result of a fall in the basement of a premises at which he was working.

Following a number of repeated failures to abide by Court Orders, we served plaintiff with a 90-day Notice. Subsequently, we moved to dismiss all claims for plaintiff’s failure to prosecute. The motion was heard by Judge Larry D. Martin in Supreme Court, Kings County, who granted the motion in its entirety and dismissed the complaint.

Plaintiff appealed the lower Court’s dismissal of the case, arguing that “law office failure” should excuse the default in complying with the 90-day Notice. In response, we argued that law office failure is not applicable and/or should not excuse the default in this case because the departing attorney was, in fact, still with the firm during the 90-day period, that one attorney’s failure to properly handle a matter cannot serve to excuse the law firm as a whole and that this is especially so here since this was an e-filing case and the 90-day Notice had been emailed to multiple email addresses at plaintiff’s firm.  We additionally argued that the Court correctly dismissed the case as the plaintiff failed to provide evidence that the case had merit. As such, we argued that the dismissal was warranted and within the sound discretion of the lower Court.

The Appellate Court affirmed the decision, holding that the plaintiff failed to file a note of issue as directed by the court and, in effect, took no action for more than a year from the time that he provided court-ordered discovery in May 2017, until he opposed the defendants’ motions pursuant to CPLR 3216 to dismiss the complaint. The conclusory and uncorroborated assertion by counsel for the plaintiff as to why the plaintiff failed to file a note of issue or take any action whatsoever until after the 90-day period had expired does not constitute a detailed and credible explanation. Further, the Court held that since the plaintiff failed to provide a justifiable excuse, there is no need to address whether the plaintiff established the existence of a potentially meritorious cause of action.

PMT was able to lay out a clear pattern of persistent failures that served to make the plaintiff’s claim of law office failure unavailing in both the lower and appellate courts resulting in dismissal of the action. At PMT we never give up.

Should you have any questions, please call our office at (914) 703-6300 or contact:

Jeffrey T. Miller, Executive Partner