H. Aydogdu, Plaintiff(s), v. S. Tencer, Defendant(s). (2026)

I. Recitation, as required by CPLR § 2219(a), of the papers considered in review of this Motion:

The following papers read herein: Numbered

Notice of Motion, Affirmation and Exhibits 1

II. Background

On February 19, 2019, Plaintiff commenced the instant action against Defendant by filing a summons with endorsed complaint seeking to recover monetary damages in the amount of $3,500.00 with interest, costs and disbursements for alleged damage to Plaintiff's automobile. The matter was scheduled for inquest upon Plaintiff's filing of a notice of inquest on June 7, 2019. Thereafter, Defendant served an answer and combined discovery demands on Plaintiff on July 30, 2019, and filed the said documents with the court on September 4, 2019. The matter was subsequently scheduled for a conference on January 21, 2020.

On February 3, 2026, Defendant moved (1) pursuant to CPLR 3216(a) seeking to dismiss Plaintiff's endorsed complaint for want of prosecution; (2) pursuant to CPLR 3126 seeking to strike Plaintiff's endorsed complaint for failure to provide discovery; or in the alternative (3) compelling Plaintiff to provide outstanding discovery by a date certain ("Motion Seq. #2"). Motion Seq. #2 was submitted on default on March 2, 2026, and subsequently assigned to this Court for determination on June 8, 2026.

III. Discussion

i. Motion seeking to dismiss Plaintiff's endorsed complaint for want of prosecution

CPLR 3216 states, in pertinent part:

"(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(1) Issue must have been joined in the action;

(2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later;

(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue 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.

(c) In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action."

(see CPLR 3216[a]-[c] [emphasis added])

Reference is also made to CPLR 3402, which provides the procedure for filing a note of issue, as follows: "[a]t any time after issue is first joined any party may place a case upon the calendar by filing . . . a note of issue with the clerk . . . [and] [t]he clerk shall enter the case upon the calendar as of the date of filing of the note of issue" (see CPLR 3402[a]).

Here, Defendant alleged that the instant action had been abandoned since 2021 and that Plaintiff had failed to respond to Defendant's 90-day notice requiring Plaintiff to resume prosecution, which was served on October 22, 2025 (see affirmation of N. Hecker, Esq., ¶ 2). In support of their motion, Defendant submitted the following: affirmation of N. Hecker, Esq.; affirmation of good faith; summons with endorsed complaint; Defendant's answer; Defendant's combined demands; Defendant's notice for discovery and inspection; Defendant's demand for verified bill of particulars; email communication; Defendant's ninety (90) day notice, dated October 22, 2025; and affidavit of service.

Upon review of the submissions and the court's records, the Court finds that Defendant demonstrated compliance with the requirements of CPLR 3216 by timely and properly serving Plaintiff with a 90-day notice via certified mail, "warning them about the potential for dismissal if they failed to resume prosecution of the action within 90 days" (see F.E. v Ebrahim, 245 AD3d 557, 557 [1st Dept 2026] [internal citation omitted]; CPLR 3216[b][3]). Plaintiff failed to serve and file a notice of issue pursuant to CPLR 3216(b)(3).

However, the procedure for filing a note of issue pursuant to CPLR 3402 is applicable in the Supreme Court; instead, it is a notice of trial with certificate of readiness that triggers the calendaring of a case for trial in the Civil Court (see 22 NYCRR 208.17). Pursuant to CCA 1301, it is the clerk of the court that is charged with the responsibility of fixing a date for trial after joinder of issue when any party appears unrepresented in an action in the Civil Court. Conversely, where all parties appear by counsel, any party may serve a notice on the others by fixing a date for trial and filing such notice with the clerk, who thereafter places the case on the calendar for trial (see CCA 1301). "To the extent that CCA 1301 explicitly prescribes different procedures for trial readiness based on the representation status of the parties, it conflicts with CPLR 3402 and the CCA controls" (see Erinna v Ofodile, 59 Misc 3d 723, 725-726 [Civ Ct. NY County 2018] [internal citation omitted]; Dudley v Karpenko, 2025 NY Slip Op 51714[U], 87 Misc 3d 1228[A] [Civ Ct. Kings County 2025] [holding that "[t]he procedure set forth under CCA 1301 supersedes the supreme court calendar practice rule under CPLR 3402"]; see also CCA 2102 ["The CPLR and other provisions of law relating to practice and procedure (sic) in the supreme court, notwithstanding reference by name or classification therein to any other court, shall apply in this court as far as the same can be made applicable and are not in conflict with this act"]).

Here, Plaintiff is a pro se litigant, and in accordance with CCA 1301, "it would have been unjustified, in this instance, to require [P]laintiff to file a notice of trial in response to [D]efendant's 90-day demand" (see Erinna at 726), when the "civil court clerk, rather than the unrepresented plaintiff, is statutorily obligated to calendar this case for trial" (see Dudley).

In light of the foregoing, the branch of Defendant's motion to dismiss Plaintiff's complaint for want of prosecution is denied.

ii. Motion to strike Plaintiff's endorsed complaint for failure to provide discovery

Where a party "wilfully fails to disclose information which the court finds ought to have been disclosed," the court may impose penalties by striking the party's pleadings (see CPLR 3126[3]). However, "[s]triking a party's pleadings is a drastic sanction, and will generally be made only upon a clear showing that the party's conduct was willful and contumacious" (see CEMD EI. Corp. v Metrotech LLC I, 141 AD3d 451, 453 [1st Dept 2016] [internal citation omitted]). Further, there needs to be a showing that the noncompliance was done in "bad faith" (see Williams v Shiva Ambulette Serv. Inc., 102 AD3d 598, 599 [1st Dept 2013] [internal citation omitted]).

Here, Defendant alleged that when the parties appeared for a conference on January 21, 2020, the court directed that all outstanding discovery be produced by June 11, 2020 (see affirmation of Nicole Hecker, Esq., ¶ 6). According to Defendant, Defendant's counsel reached out to Plaintiff via email on January 23, 2020, May 5, 2020, May 7, 2021, October 22, 2021, and December 16, 2024, requesting that all outstanding discovery be produced (id., ¶¶ 7-11; see also Exhibit C-F). Plaintiff subsequently failed to comply with Defendant's demands (id.).

While Defendant's email correspondence with Plaintiff demonstrates Defendant's repeated efforts to obtain Plaintiff's response to outstanding discovery demands, the Court declines to strike the endorsed complaint at this juncture. Despite a diligent search, the Court was unable to locate a written order directing Plaintiff to provide discovery by a date certain, and as such, Defendant failed to conclusively demonstrate that there was an established pattern of Plaintiff failing to comply with court orders (see Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011] [internal citation omitted]). Therefore, the drastic sanction of striking the endorsed complaint is not warranted on the present record, and accordingly, the branch of Defendant's motion to strike Plaintiff's endorsed complaint for failure to provide discovery is denied.

iii. Motion to compel Plaintiff to provide outstanding discovery by a date certain

In the alternative, Defendant moved to compel Plaintiff to respond to Defendant's discovery demands. Pursuant to CPLR 3124, "[i]f a person fails to respond to or comply with any request, notice interrogatory, demand, question or order under this article the party seeking disclosure may move to compel compliance or a response." Where the discovery demands and interrogatories seek information that is "irrelevant, overly broad, or burdensome," a motion to compel must be denied (see Pesce v Fernandez, 144 AD3d 653, 655 [2d Dept 2016] [internal citation omitted]).

Upon review of Defendant's combined discovery demands, the Court finds that the discovery sought by Defendant was "material and necessary" to the prosecution of their claims (see Pacelli v Peter L. Cedeno & Associates, P.C., 192 AD3d 560, 560 [1st Dept 2021]; see generally CPLR 3101[a]). Here, the instant motion was unopposed. Thus, the branch of Defendant's motion to compel Plaintiff to respond to outstanding discovery demands is granted on default, and Plaintiff is directed to provide responses to outstanding discovery demands within ninety (90) days of the date of entry of this decision and order. Plaintiff's failure to respond by the forementioned deadline shall preclude Plaintiff from offering any evidence, or testimony based thereon at the time of trial.

IV. Order

Accordingly, it is hereby:

ORDERED that the branch of Defendant's Motion to dismiss Plaintiff's complaint for want of prosecution is DENIED; and it is further

ORDERED that the branch of Defendant's Motion to strike Plaintiff's complaint is DENIED; and it is further

ORDERED that the branch of Defendant's Motion to compel Plaintiff to provide outstanding discovery is GRANTED on default and Plaintiff is directed to respond to Defendant's outstanding discovery demands within ninety (90) days of the date of entry of this decision and order; and it is further

ORDERED that Plaintiff's failure to respond to said discovery demands by the forementioned deadline shall preclude Plaintiff from offering any evidence, or testimony based thereon at the time of trial; and it is further

ORDERED that the parties are directed to appear for pre-trial conference in room 428, Civil Court of the City of New York, County of New York, 111 Centre Street, New York, NY 10013 on a date to be decided by the Clerk; and it is further

ORDERED that Defendant shall serve a copy of this Decision and Order upon Plaintiff with notice of entry by certified mail with return receipt requested, to Plaintiff's last known address, and by email within thirty (30) days thereof, and provide affidavits of service establishing that it did so by the next scheduled court date.

This constitutes the DECISION and ORDER of the Court.

DATE August 27, 2026

HON. CHANGYONG WENDY C. LI, J.C.C.

Changyong Wendy C. Li, J.