STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA

_____________________________________

ALMA R. MORENO,

as Administratrix of the Estate

of IGNACIO RAMOS, JR., Deceased

Plaintiff,

vs INDEX #H-10899

NORFOLK SOUTHERN CORPORATION,

NORFOLK & WESTERN RAILWAY COMPANY

Defendant.

_____________________________________

MISERENDINO, CELNIKER,

SEEGERT, & ESTOFF, P.C.

(Michael R. Drumm, Esq.

of Counsel) for Plaintiff

SAPERSTON & DAY, P.C.

(Olney H. Clowe, Esq.

of Counsel) for Defendant

DECISION AND ORDER

GERACE, J.

Defendant moves for dismissal because plaintiff

attorney has twice ignored 90 day demands it made under

CPLR 3216 to file a note of issue.

Plaintiff sued 6/23/89. Depositions of plaintiff and

defendant's representatives were completed by April 16,

1992.

On 1/20/94, defendant sent its first 90 day demand by

ordinary mail. On April 11, 1994, instead of filing a note

of issue or applying for an extension, plaintiff sent

defendant a letter electing to treat the demand as a

nullity because it was not sent by certified mail.

August 5, 1994, defendant again served a 90 day

demand, this time by certified mail, return receipt.

Unfortunately, another technicality erupted; the demand

referred to an action in Erie County Supreme Court.

December 9, 1994, plaintiff finally filed his note of

issue, but, in Erie, instead of Chautauqua County,

requiring a transfer of the note of issue to Chautauqua

County.

December 22, 1994, defendant advised counsel his Note

of Issue was untimely, having been served 126 days after

service by certified mail, and, nearly 11 months after

service of the first 90 day demand.

Plaintiff's excuses:

1. The first demand was by ordinary mail.

2. The second demand was titled in the wrong county.

3. Defendant allegedly made representations that a summary

judgment motion was pending, causing plaintiff to pause

in filing for fear that defendant might be setting a

trap by resorting to an "increasingly common tactic or

strategy for a defendant to wait until after a Note of

Issue and Statement of Readiness have been filed, and

then move for Summary Judgment based upon Affidavits

from witnesses who were not produced for deposition

(example: Majcher v. Federal Machine Co., Index #). The

defendant can then use the Statement of Readiness and

rule 202.21 as a shield; to prevent plaintiff from

deposing the new witness(es) or anyone else with

knowledge to rebut the Motion for Summary Judgment."

This excuse borders on the frivolous! Filing a note of

issue does not prevent discovery on a summary judgment

motion. See ConnellVCityofNY, 102 M2 585, 424 S2 81;

JosephVCityofBuffalo 187 AD2d 946.

Plaintiff's counsel says after he completed

negotiations with a claim agent of defendant on a different

case, he asked the agent about the Moreno case which was

being handled by a different claim agent. On a call back,

plaintiff's counsel was informed that no negotiations on

Moreno was possible because of a pending motion for summary

judgment. In fact, no motion was pending. Plaintiff's

counsel did not call the attorney for defendant nor call

that other claim agent.

Defendant says, "It strains credulity" to suggest that

defendant was attempting to draw plaintiff's experienced

counsel into some procedural trap, particularly since the

comments of the claim agent did not take place until eight

months after the service of the first demand! This Court

agrees.

Plaintiff's intimation it was tricked into delay has

no merit; Plaintiff has not demonstrated a meritorious

reason for the delay; Plaintiff has failed to describe a

meritorious cause of action; Plaintiff has failed to rebut

defendant's contention there is little or no economic loss.

The closest plaintiff came to suggest any merit to the

claims is counsel's statement that the expert it approached

after the motion thinks there might be a cause of action;

but, there is no affidavit from the expert.

If there was ever a case that deserves dismissal for

failure to respond adequately to a 90 day demand, this is

it. But, should the plaintiff suffer for the conduct or

misconduct of her counsel?

"More recently , however, a widespread assumption

appeared to manifest itself among the courts, appellate as

well as original: that plaintiffs should not, or at least

not always, be penalized for the delays of their

attorneys." DAVIDD.SIEGEL,NEWYORKPRACTICE, Sec. 375.

See NeyrayAlbavPelhamFoods,Inc.,, 46 AD2d 760, 361

NYS2d 14, cited by Professor Siegel, in which the court

held:

"While the papers submitted in opposition

to the motion to dismiss are far from

satisfactory . . . we nonetheless find that

there was no intentional abandonment of the

action nor any undue prejudice worked on the

defendants by the delay incurred. Plaintiff,

under these circumstances, should not be

required to suffer the consequences of his

attorneys' misconduct. (citations omitted)."

The Court required plaintiff's attorney personally to pay a

stated sum to defendants. SIEGEL, supra.

This Court has adopted this approach. See Andersonv.

QualityMarkets, Supreme Court, Chautauqua County, Index

No. H-06421, Feb. 2, 1995; Karrv.QualityMarkets, Supreme

Court, Chautauqua County, Index No. H-O8935, where this

Court said: " [T]he Court is reluctant to deprive plaintiff

of her day in court for actions or nonactions of her

counsel."

The Court finds no prejudice to defendant.

The motion of defendant is granted, unless within 30

days from the service of a copy of this order, plaintiff's

counsel pays the sum of $1,500.00 to defendant to reimburse

it for counsel fees it has incurred for the two 90 day

notices, and the research and motion to dismiss herein,

provided, however, if defendant's counsel can verify time

and costs in excess of the $1,500.00, this Court will

consider their application for additional funds.

If payment is made as directed, the motion will be

considered denied, without prejudice.

The plaintiff is directed to file a note of issue

within 90 days from the entry of this Decision and Order.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY.

Dated: October , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of which

the within is a copy, is duly granted in the above entitled

action on the day of October, 1995, and duly entered

in the office of the Clerk of the County of Chautauqua on

the same date.