U Joon Sung v Park 2016 NY Slip Op 30354(U) February 23, 2016 Supreme Court, New York County Docket Number: 159279/15 Judge: Kathryn E. Freed is typical of the chameleon-like conduct of defendants in a legal malpractice case. Without a pause, they take on the coloration and the defenses of the original tortfeasor; in this case, arguing that papers they filed, and which failed to prove “serious injury” in a motor-vehicle accident case, now prove that plaintiff really did not suffer the necessary serious physical injury needed to make the no-fault threshold.
“The underlying action was marked off the trial calendar pursuant to the order of the Supreme Court, Queens County (Weiss, J.) dated September 15, 2011, after a defendant, Feng Ue Jin, appeared in the action, plaintiff accepted his answer, and the court noted that additional discovery was needed. Ex. D. The court noted that the action could be restored to the calendar by stipulation of all parties pursuant to CPLR 3404 once all discovery had been completed and the matter was ready for trial. Id. Hoffman and Bennewitz thereafter moved, inter alia, for an order dismissing the complaint pursuant to CPLR 3404 due to plaintiffs failure to restore the matter to the calendar within one year after it was marked off or, in the alternative, pursuant to CPLR 3212 and Insurance Law 5102(d), for an order dismissing the complaint on the ground that plaintiff did not suffer a “serious injury,” or for an order precluding Jin from testifying due to his failure to appear for deposition. Ex. E. By order dated February 11, 2013, and entered February 22, 2013, Justice Weiss granted defendants’ motion to dismiss pursuant to CPLR 3404, reasoning that the action had been marked off the calendar for more than one year and was thus deemed abandoned. Id. Justice Weiss also noted that the motion was unopposed. Id. ”
“Plaintiff thereafter moved to vacate the dismissal. By order dated September 18, 2013, and entered September 25, 2013, Justice Weiss denied the motion, holding that plaintiff failed to establish a reasonable excuse for his default in failing to oppose defendants’ motion. Ex. F. In a lengthy decision excoriating plaintiffs counsel, Justice Weiss noted, inter alia, “plaintiffs overall lack of diligence in prosecuting this case.” Ex. F, at p. 4. Justice Weiss also noted that the medical evidence “is insufficient to demonstrate a meritorious cause of action,” that “plaintiff failed to submit any competent medical evidence of a decreased range of motion of his cervical and lumbar spine and right shoulder roughly contemporaneous with the accident” and that “the affirmed MRI reports, especially the MRI of plaintiffs right shoulder, taken nine months after the accident, are insufficient to demonstrate that any condition revealed are [sic] causally related to the accident.” Id., at p. 4. Subsequently, plaintiff appealed Justice Weiss’ order. By order dated April I, 2015, the Appellate Division Second Department held, inter alia, that:
Even if [plaintiff] proffered a reasonable excuse for his default, he failed to demoflstrate a potentially meritorious opposition to that branch of [defendants] motion which was pursuant to CPLR 3404 to dismiss the complaint. In addition, [plaintiff] failed to demonstrate a reasonable excuse for the 21-month delay in prosecuting this action after the action was marked off the trial calendar and to rebut the presumption o.f abandonment that arose pursuant to CPLR 3404 after it was marked off the trial calendar. Furthermore, [plaintiff] failed to demonstrate that [defendants] would not be prejudiced ifthe case were restored to the trial calendar, given the more than four-year delay between the date this action accrued and the date of [plaintiffs] motion. Accordingly, the Supreme Court properly denied (plaintiffs] motion to vacate the order entered February 22, 2013 and to restore the action to the trial calendar. ”
“Contrary to defendants’ claim, Justice Weiss’ order dated September 18, 2013 and entered
September 25, 2013 (Ex. F) does not conclude on the merits that plaintiff failed to establish a
“serious injury” as a matter oflaw. In fact, it is well settled that a dismissal of a prior action between
the same parties based on a failure to prosecute does not constitute a dismissal on the merits and does
not bar a subsequent action based on the same facts. See Lema v New York Cent. Mut. Fire Ins. Co.,
112 AD3d 891 (2d Dept 2013); Morales v New York City Haus. Auth., 302 AD2d 571 (2d Dept
2003). It is evident from a reading of the order that Justice Weiss’ discussion of the likelihoOd of
the merits of the “serious injury” claim was strictly confined to the issue of whether plaintiffs default could be vacated. If Justice Weiss’ order were not clear enough, the order of the Appellate
Division, Second Department confirms that the only issue before Justice Weiss was whether the
order dismissing the complaint as abandoned should be vacated. Ex. H to Cross Mot.
To the extent defendants rely on plaintiffs deposition testimony to establish that he did not
sustain a serious injury, that argument must fail, as such evidence does not typically qualify as
documentary evidence. See Amsterdam Hospitality Group, LLC v Marshall-Alan Assocs, Inc., 120
AD3d 431, 432, supra, citing Siegel, Practice Commentaries, McKinneys Cons Laws of NY, Book
7B, CPLR C3211:10, at 22. Thus, defendants’ motion must be denied. “