A breach of contract case was marked off the New York County Supreme Court's trial calendar and dismissed after twelve months of inactivity. [CPLR 3404]
Some five years later, when the plaintiff sought to restore the matter for trial, that effort was rebuffed by the Queens County Supreme Court. On appeal, the Appellate Division, Second Department, affirmed.
In order to get a case back on the court's calendar (once the dispute has been dismissed pursuant to this particular statutory section), a movant must show a:
- meritorious cause of action;
- reasonable excuse for the delay;
- lack of intent to abandon the case; and
- lack of prejudice to the opponent(s).
In M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C. , the court wasn't buying plaintiff's excuse that it had spent five years "searching for discovery documents requested by the defendants," particularly in the absence of "any evidence of its activities" during that time period.
In litigation, the lack of haste makes waste.
For a copy of the Appellate Division's decision, please use this link: M. Parisi & Son Constr. Co., Inc. v. Long Is. Obs/Gyn, P.C.