Indemnity Insurance v. Lamendola

—In related actions to recover damages for injury to property (Action No. 1) and personal injuries (Action No. 2), respectively, James Woo, a defendant in Action No. 1 and the plaintiff in Action No. 2, appeals from (1) an order of the Supreme Court, Nassau County (Bucaria, J.), entered November 7, 1997, which, inter alia, granted the motion of Jennifer P. Lamendola, a defendant in both actions, to consolidate the actions to the extent of directing a joint trial of the actions and transferring Action No. 2 to Nassau County, and (2) an order of the same court, entered April 8, 1998, which granted the motion of Jennifer P. Lamendola pursuant to CPLR 3216 to dismiss the complaint in Action No. 2 for failure to prosecute.

Ordered that the order entered November 7, 1997, is affirmed, without costs or disbursements; and it is further,

Ordered that the order entered April 8, 1998, is reversed, on the law, without costs or disbursements, the motion is denied, and the complaint in Action No. 2 is reinstated.

Following a multiple-car collision, Indemnity Insurance Company commenced a subrogation action in Nassau County to recover damages for injury to property, against, among others, the appellant and the respondent. The appellant subsequently commenced an action to recover damages for personal injuries against the respondent in New York County. Contrary to the appellant’s contention, the Supreme Court acted properly in directing a joint trial of the actions and in transferring Action No. 2 to Nassau County (see, Gomez v Jersey Coast Egg Producers, 186 AD2d 629; Strasser v Neuringer, 137 AD2d 750).

However, the court erred in dismissing the complaint in Action No. 2. It is undisputed that on or about December 1, 1997, the respondent sent the appellant a 90-day demand pursuant to CPLR 3216 to resume prosecution of Action No. 2. The demand was sent by certified mail, return receipt requested, to a post office box in New York County designated by the appellant, who appeared pro se, as his address for service. By notice of motion dated March 9, 1998, the respondent moved to dismiss the complaint in Action No. 2, contending that the certified mail demand had been delivered to the post office on December 6, 1997, that the appellant therefore was required to serve and file a note of issue no later than March 6, 1998, and that the appellant failed to comply with the demand within this 90-day period (see, CPLR 3216 [b] [3]). In opposition to the motion, the appellant submitted a United States Postal Service receipt indicating that while the demand had been delivered to the post office on December 6, 1997, he did not pick up the demand and sign for it at the post office window until December 16, 1997. Hence, the appellant maintained that the 90-day period did not commence running until his actual receipt of the demand on December 16, 1997, and that his service and filing of a note of issue and certificate of readiness on March 16, 1998, was therefore timely. The appellant is correct.

It is well settled that, pursuant to CPLR 3216 (b) (3), the prescribed 90-day period for complying with the demand is measured from the “receipt of such demand” rather than the more commonly applicable date of service (see, Public Serv. Mut. Ins. Co. v Zucker, 225 AD2d 308; Juracka v Ferrara, 137 AD2d 921; Ellis v Urs, 121 AD2d 361). Since the 90-day period runs from the date of actual receipt (see, 7 Weinstein-Korn-Miller, NY Civ Prac ¶ 3216.07), the appellant’s service and filing of the note of issue within 90 days after his actual receipt of the demand on December 16, 1997, was timely.

Contrary to the position taken by the Supreme Court and by our dissenting colleague, there is no difference in the treatment of certified mail, return receipt requested, when addressed to a post office box rather than a street address. As indicated on Postal Service Form 3849, which is applicable to both post office boxes and street addresses, if the named recipient is unavailable to receive the item when delivery is attempted at the specified mailing address, Form 3849 is left at the address. The addressee may then elect either to go to the local post office and pick up the letter or have it redelivered. The same procedure is followed regardless of whether the certified letter is sent to a post office box or a street address. In either case, the letter is not “received” for purposes of CPLR 3216 (b) (3) until the addressee comes into actual physical possession of it. Accordingly, the possibility that an addressee can intentionally manipulate the date of receipt of the certified letter merely by delaying in picking it up is present in either situation.

Our dissenting colleague urges that a contrary interpretation of the statute would be more in keeping with the intent underlying CPLR 3216 to timely dispose of actions. While we share this concern for the prompt resolution of cases and believe that the dissent sets forth a plausible argument in favor of a legislative amendment to measure the prescribed period from the date of service, the statute as presently written requires that the 90-day period run from the date of “receipt”. Until such time as the Legislature sees fit to make such a change, the date of receipt must be deemed controlling. Accordingly, the appellant complied with the 90-day demand in this case, and the motion to dismiss the complaint for failure to prosecute should have been denied. Sullivan, Friedmann and Luciano, JJ., concur.