Back in November of 2002, Stanley Okun filed a breach of contract case with the New York County Supreme Court against Paul Tanners.
Some two years later, after missing four court appearances -- or "pretrial conferences" -- the court struck Okun's dispute from its trial calendar. When that occurs, New York State law (CPLR 3404) provides that a litigant has a year to restore a case to the court's calendar, or the claim is deemed "abandoned."
Of course, in this particular instance, Okun waited some eighteen months to reactivate the dispute. So now, according to that same state law, he was required to jump some additional hoops and show the following:
- a reasonable excuse for the delay in seeking the case's restoration to the trial calendar;
- a meritorious "cause of action" or claim;
- no intent to abandon the action; and,
- a lack of prejudice to the defendant.
The New York County Supreme Court decided to cut Okun a break if he paid Tanners' attorneys a measly one thousand bucks -- only $250 for each of the four pretrial conferences that Okun had missed.
On appeal, the Appellate Division, First Department, found that Okun had satisfied the governing statutory elements and concluded that his attorneys' absences were excusable in that they had "not receive notice of any of the conferences."
In a dissent, two Justices observed that the sole explanation offered by Okun's counsel was that the case "fell through the cracks." The dissenters were of the opinion that excuse was "particularly lame," given that, "in common parlance, a person who states that something for which he or she was responsible 'fell through the cracks' is understood to be admitting fault, not proffering excuse."
With that said, you'll excuse us if we don't take a crack at a comment.
To download a copy of the Appellate Division's decision, please use this link: Okun v Tanners