DISMISSAL OF CASE OFF CALENDAR FOR MORE THAN ONE YEAR

Court: Supreme Court, Appellate Division, Second Department, New York

Case: LaMarca v. Scotto Brothers Woodbury Restaurant, Inc.

Date: Sept. 13, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident lawyer)

Comment:

This decision takes us into the minutiae of New York civil practice. In ways I will explain, this appeals decision is unsatisfying.

When a case is ready for trial – in other words, all pre-trial "discovery" is finished – it gets placed on the court’s trial calendar. Usually this is done by the lawyers for the plaintiff that is bringing the case.

The trial calendar is really just a list. A case placed on the trial calendar goes on the bottom of the list to wait its turn. When it gets to the top of the list, after all the cases before it has gone, the case can proceed to trial.

In this lawsuit the case was removed from the trial calendar. The New York rule is that if a case is off of the trial calendar for more than one year, it is considered abandoned by the plaintiff and can be dismissed. This is what happened here.

Now why is this interesting?

First, we have no idea what type of claim this is: whether a car accident, medical malpractice, business dispute, products liability for a defective product injury, construction accident or what have you. All we know is that the plaintiff’s lawyers withdrew from the case, leaving plaintiff to find a new attorney.

The decision also says that plaintiff claims to have been financially unable to pay trial-related expenses, such as for an expert witness. We don’t know what kind of expert witness was needed because we don’t know what kind of case this is. In an accident case, the plaintiff’s attorney customarily advances the expenses of trial because the attorney expects to win and recover the expenses, plus earn a fee (or profit). So is this an accident case where the plaintiff’s attorneys lost faith in the case and didn’t want to finance the trial, so they told the plaintiff to pay trial expenses or else the attorney would jump ship, which he or she did? Or is this a commercial or business-related case where the client usually pays expenses and the plaintiff just ran out of money?

We can’t tell from this decision.

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CAR ACCIDENT VICTIM DOES NOT GET NEW TRIAL WHERE PLAINTIFF IN RELATED CASE DIED (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 6, 2011)

JUDGE'S QUESTIONING OF JURY IMPROPER; NEW ACCIDENT CASE TRIAL GRANTED (Posted by Queens accident lawyer Gary Rosenberg on Sep 1, 2011)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Grays, J.), entered December 2, 2009, which denied its motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action and granted the plaintiffs' cross motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the case to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action is granted, and the plaintiffs' cross motion, in effect, to vacate the dismissal of the action and to restore the case to the trial calendar is denied.

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see Vaream v. Corines, 78 A.D.3d 933, 911 N.Y.S.2d 424; M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C., 39 A.D.3d 819, 820, 834 N.Y.S.2d 324; Basetti v. Nour, 287 A.D.2d 126, 130–131, 731 N.Y.S.2d 35). The plaintiff is required to satisfy all four components of the test before the dismissal can be vacated and the case restored (see Vaream v. Corines, 78 A.D.3d 933, 911 N.Y.S.2d 424; M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C., 39 A.D.3d at 820, 834 N.Y.S.2d 324; Krichmar v. Queens Med. Imaging, P.C., 26 A.D.3d 417, 419, 810 N.Y.S.2d 488).

Here, the plaintiffs failed to satisfy all four components of the test. The plaintiffs' conclusory and unsubstantiated claim that they did not have the funds to pay for the trial-related expenses prior to trial was insufficient to excuse the more than two-year delay in obtaining a new trial attorney and an expert witness (see Vaream v. Corines, 78 A.D.3d at 933–934, 911 N.Y.S.2d 424; Leinas v. Long Is. Jewish Med. Ctr., 72 A.D.3d 905, 906, 898 N.Y.S.2d 500; Tate v. Peninsula Hosp. Ctr., 255 A.D.2d 503, 504, 680 N.Y.S.2d 609; Carter v. City of New York, 231 A.D.2d 485, 647 N.Y.S.2d 28). Furthermore, the only activity during the two-year period between the time the case was marked off and the defendant's motion to dismiss was former counsel's motion to withdraw. Under these circumstances, the plaintiffs failed to rebut the presumption of abandonment that attaches when a case has automatically been dismissed pursuant to CPLR 3404 (see Okun v. Tanners, 11 N.Y.3d 762, 763, 867 N.Y.S.2d 25, 896 N.E.2d 660; Krichmar v. Queens Med. Imaging, P.C., 26 A.D.3d at 419, 810 N.Y.S.2d 488; Schwartz v. Mandelbaum & Gluck, 266 A.D.2d 273, 274, 698 N.Y.S.2d 252; Dalto v. 3660 Park Wantagh Owners, 275 A.D.2d 296, 712 N.Y.S.2d 58). Accordingly, the plaintiffs' cross motion, in effect, to vacate the dismissal of the action and to restore the case to the trial calendar should have been denied, and the defendant's motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action should have been granted (see Vaream v. Corines, 78 A.D.3d at 934, 911 N.Y.S.2d 424).

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