Basile v. New York City, NY et al

Filing 101

ORDER: For all these reasons, the Court dismisses Plaintiff's case with prejudice. The Clerk of Court is respectfully directed to close the case. The Clerk of Court is further respectfully directed to mail a copy of this order to Plainti at: Christopher Basile, 2877 Paradise Rd Ste Unit 702, Las Vegas, NV 89109. IT IS SO ORDERED. (Signed by Judge Edgardo Ramos on 11/17/2021) (ama) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER BASILE,
Plaintiff,
ORDER

v.
THE MADISON SQUARE GARDEN
COMPANY, an entity formed under the laws of
the State of Delaware, and each of ANGELE
DELROSSO, MIKE AVELLINO, ANTHONY
SABELLA, FRANK CELENTANO,
CHRISTOPHER SOTO, PHYLLIS SMITH,
and ANTHONY MONGELLI in his/her
individual capacity and official capacity as an
employee/former employee and/or agent of The
Madison Square Garden Company,

17 Civ. 9060 (ER)

Defendants.

RAMOS, D.J.
On November 20, 2017, Plaintiff Christopher Basile filed a complaint against Defendants
the City of New York (“the City” or “New York City”), the City Police Commissioner James P.
O’Neill, Officer Matthew Winters, a John Doe police officer (whom the City eventually
identified as Officer William Dottavio), the Madison Square Garden Company (MSG), an MSG
supervisor named Angele Delrosso, and John Doe employees of MSG (six of whom MSG
eventually identified as Mike Avellino, Anthony Sabella, Christopher Soto, Frank Celentano,
Phyllis Smith (deceased), and Anthony Mongelli), alleging violations under 42 U.S.C. § 1983
and New York common law. Doc. 2. After the Court dismissed the City and New York City
Police defendants, 1 on November 14, 2019, Plaintiff filed a Second Amended Complaint against
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In the Second Amended Complaint, Plaintiff did not name Dottavio as a defendant. Dottavio
was terminated from this action on November 15, 2019.

Defendants MSG, Delrosso, Avellino, Sabella, Soto, Celentano, Smith, and Mongelli (“MSG
Defendants”). Doc. 82. On February 7, 2020, the MSG Defendants filed their answer. Doc. 92.
On December 1, 2020, the Court entered an order endorsing the parties’ status report
regarding discovery, which stated, in part, that Plaintiff’s deposition must be conducted by May
15, 2021. Doc. 96. On September 13, 2021, the MSG Defendants requested a pre-motion
conference to discuss their anticipated motion to dismiss for failure to comply with the Court’s
December 1, 2020 order, as Plaintiff allegedly refused to appear for his deposition. Doc. 98. On
October 14, 2021, the Court scheduled the pre-motion conference for October 26, 2021, and
directed Plaintiff to submit a written response by October 20, 2021. Doc. 99. Plaintiff never
responded to the pre-motion conference request as directed by the Court.
On October 26, 2021, the Court held the pre-motion conference, during which neither
Plaintiff nor counsel for Plaintiff appeared. Doc. 100. The Court ordered the parties to appear
telephonically on November 17, 2021, so that Plaintiff may show cause why the Court should
not dismiss this case pursuant to Federal Rule of Civil Procedure 41 for failure to prosecute or
otherwise sanction Plaintiff pursuant to Federal Rule of Civil Procedure 37. Id. On October 27,
2021, the Clerk of Court mailed a copy of the order to Plaintiff. At the telephonic conference on
November 17, 2021, Plaintiff (and any counsel for Plaintiff) failed to appear. There has been no
communication from Plaintiff since his notice of substitution of attorney dated April 23, 2021.
Doc. 97. For the reasons set forth below, the Court now dismisses Plaintiff’s action for failure to
prosecute under Federal Rule of Civil Procedure 41(b).
I.

Standard
Courts evaluating dismissal under Rule 41(b) must consider
(1) the duration of the plaintiff’s failures,

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(2) whether plaintiff had received notice that further delays would result in
dismissal,
(3) whether the defendant is likely to be prejudiced by further delay,
(4) whether the district judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a party’s right to due
process and a fair chance to be heard, and
(5) whether the judge has adequately assessed the efficacy of lesser sanctions.
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citation omitted). When
weighing these factors, “[n]o single factor is generally dispositive.” Baptiste v. Sommers, 768
F.3d 212, 216 (2d Cir. 2014).
II.

Discussion
In the instant case, each LeSane factor weighs in favor of dismissal. First, Plaintiff has

not communicated with the Court nor responded to any of the Court’s orders since his counsel
filed a notice of substitution of attorney dated April 23, 2021. Doc. 97. Prior to this notice, the
parties submitted a joint status report and proposed schedule on November 30, 2020. Doc. 95.
�is report was filed in response to the Court’s order instructing the parties to submit a joint
status report, as there had been no further activity in this case since counsel for Plaintiff entered a
notice of appearance on July 12, 2020. Doc. 94. �us, Plaintiff has not taken meaningful action
to prosecute this case in nearly a year. “A delay of eight months to one year in prosecuting a
case falls comfortably within the time frames found sufficient” for dismissal under Rule 41(b).
Salem v. City of New York, No. 16 Civ. 7562 (JGK), 2017 WL 6021646, at *2 (S.D.N.Y. Dec. 4,
2017) (citation omitted).
Second, Plaintiff was given clear notice that failure to respond to the Court’s orders could
result in dismissal. First, the Court directed Plaintiff to submit a written response to the MSG
Defendants’ pre-motion conference request to discuss their anticipated motion to dismiss for
failure to comply with a Court order and failure to prosecute. Doc. 99. Second, the Court

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ordered the parties to appear for a telephonic conference on November 17, 2021, so that Plaintiff
may show cause why the Court should not dismiss this case for failure to prosecute or otherwise
sanction Plaintiff. Doc. 100. �is order was mailed to Plaintiff at the address he provided to the
Court. Moreover, Plaintiff is familiar with the consequences of noncompliance with a Court
order. Plaintiff’s previous failure to comply with two Court orders resulted in New York City and
Officer Winters being dismissed from this action. Doc. 73.
Third, “prejudice to defendants resulting from unreasonable delay may be presumed.”
LeSane, 239 F.3d at 210. Because Plaintiff has failed to advance his case for nearly a year, the
Court perceives no circumstances rebutting this presumption. Moreover, the MSG Defendants
have twice had to appear at conferences before the Court, only for Plaintiff not to appear.
Fourth, Plaintiff has not taken advantage of his “right to due process and a fair chance to
be heard.” LeSane, 239 F.3d at 209. “[I]t is not the function of this Court to chase dilatory
plaintiffs while other litigants in this district seek access to the courts.” Honsaker v. The City of
New York, No. 16 Civ. 3217 (AJN), 2020 WL 6082094, at *3 (S.D.N.Y. Oct. 15, 2020) (quoting
Hibbert v. Apfel, No. 99 Civ. 4246 (SAS), 2000 WL 977683, at *3 (S.D.N.Y. July 17, 2000)).
Fifth, because Plaintiff has ignored two Court orders, failed to appear at two conferences,
and delayed this case for several months, there are no weaker sanctions that could remedy his
failure to prosecute this case. Dismissal is appropriate where, as here, Plaintiff “appears to have
abandoned the litigation.” Dixon v. Urbanskt, No. 17 Civ. 1123 (PMH), 2020 WL 4347736, at
*3 (S.D.N.Y. July 29, 2020); McNair v. Ponte, No. 17 Civ. 2976 (AT) (GWG), 2020 WL
3402815, at *7 (S.D.N.Y. June 18, 2020) (citing abandonment of claims as reason that any other
sanction would be less effective).

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For all these reasons, the Court dismisses Plaintiff’s case with prejudice. �e Clerk of
Court is respectfully directed to close the case. �e Clerk of Court is further respectfully directed
to mail a copy of this order to Plaintiff at
Christopher Basile
2877 Paradise Rd
Ste Unit 702
Las Vegas, NV 89109
It is SO ORDERED.
Dated: November 17, 2021
New York, New York
_______________________
Edgardo Ramos, U.S.D.J.

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