Here is a really excellent article from today’s NYLJ on various calendar dismissals and how to fix them by a law clerk from the Appellate Division, First Department.

“Laxness Dismissal Survival Guide: Restoring Actions

By John R. Higgitt
New York Law Journal
November 1, 2006

One of the main objectives of the civil justice system in New York State courts, particularly following the advent of the Individual Assignment System (IAS), is to dispose of cases expeditiously.1 To facilitate this objective, Supreme Court2 is armed with several calendar control devices that allow justices to rid their inventories of actions that have been neglected or abandoned.

The major players here, CPLR 3216, CPLR 3404 and Uniform Rule 202.27 (22 NYCRR 202.27), comprise a substantial arsenal of procedural devices that allow a court to dismiss an action based upon a party’s failure to: (1) diligently prosecute the action, or (2) appear for a scheduled court conference or trial date. Dispositions pursuant to these devices are best characterized as laxness dismissals.3

Dismissals pursuant to these devices are commonplace and the annotations to CPLR 3216 and 3404 are legion. Cases so dismissed, however, may not be dead. Rather, many of these actions linger on life support, waiting to be revived. A lawyer attempting to breathe life into a dismissed case must identify the particular device used to dismiss the action and ascertain the necessary requirements to vacate the dismissal.

This article will review the applicability of CPLR 3216, CPLR 3404 and §202.27, examine the legal authority permitting vacatur of laxness dismissals and outline the showing required to vacate dismissals rendered under each device. Additionally, special attention will be paid to certain common deficiencies in papers supporting motions to vacate laxness dismissals.

The Devices

CPLR 3216, the “want of prosecution” statute, only results in dismissal of actions in which one year has lapsed since the joinder of issue without the filing of a note of issue. This statute is aimed at encouraging a party, typically a plaintiff,4 to complete discovery and serve and file a note of issue,5 thereby placing the matter on the trial calendar. Dismissal pursuant to CPLR 3216 can occur after a defendant or the court serves a written demand on the plaintiff, requesting the party to resume prosecution of the action and to serve and file a note of issue within 90 days.

Compliance with the demand insulates the action from dismissal, regardless of any prior neglect, as does moving for an extension of time before the 90-day period has lapsed.6 In the event the plaintiff moves for an extension of time before the expiration of the 90-day period, the request will be gauged under CPLR 2004, which permits a court to exercise its discretion and extend the time for performing an act.

In considering an application under CPLR 2004, the court reviews all of the relevant circumstances, including the excuse offered by the plaintiff, the merits of the complaint, the length of the extension requested and the issue of prejudice to the defendant; there is no specific precondition to relief (e.g., demonstrating a meritorious cause of action).7 Conversely, if the plaintiff neither serves and files a note of issue nor moves for an extension under CPLR 2004 within the 90-day period, she will have to demonstrate both a justifiable excuse for her failure to comply with the demand and a meritorious cause of action to avoid dismissal upon a defendant’s motion.8

CPLR 3404 authorizes the dismissal of abandoned, post-note of issue cases -cases that have been marked “off” the trial calendar and not restored within one year.9 Generally, the statute is invoked when the parties to an action appear for but are unable to proceed to trial (e.g., trial counsel engaged elsewhere). Under CPLR 3404, a case is not dismissed at the moment the “default” occurs. Rather, the case is marked “off” the trial calendar and the plaintiff has one year to restore it. Should the plaintiff fail to move to restore the action within the one year grace period-a motion that should be granted as a matter of course10-the action will be automatically dismissed.11

Section 202.27 provides that, upon a party’s failure to appear for a scheduled call of a calendar or any conference (or, upon appearing, failure to announce her readiness to proceed), the court may grant judgment against the defaulting party. This rule is the most unforgiving of the laxness dismissal devices, for unlike CPLR 3216 and CPLR 3404 it offers no grace period to the offending party to avoid dismissal.12

Authority Permitting Vacatur

CPLR 5015(a)(1) permits a court to vacate a judgment or order on the ground of excusable default where the defaulting party demonstrates both a reasonable excuse for the default and a meritorious cause of action or defense. A motion pursuant to CPLR 5015(a)(1) should be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party. Relief pursuant to this provision should only be available to a party who was not heard before the court acted. A party who contests a motion by submitting opposition papers or participating in oral argument may not move to vacate the resulting order. Rather, the party’s remedy is to appeal the order13 or move for leave to renew or reargue the motion. Permitting a party to seek vacatur of an appealable judgment or order pursuant to CPLR 5015(a)(1) would impermissibly grant the party an extension of time in which to appeal.14

Additionally, the courts have inherent power to vacate their judgments and orders in the interest of justice, a power which CPLR 5015 does not limit or impair.15 Specifically, neither the dual showing of a reasonable excuse and a meritorious claim or defense nor the one year period to seek relief should apply where vacatur is sought pursuant to a court’s inherent authority. This power, however, is not plenary, and should be exercised only to relieve a party from a judgment or order taken through mistake, inadvertence, surprise or excusable neglect.16

Most dismissals rendered pursuant to §202.27 result from a party’s failure to appear for a scheduled court conference or trial. Of course, parties who were not in court were not heard before their actions were dismissed. Therefore, a party seeking to vacate a dismissal rendered pursuant to this Uniform Rule needs to satisfy the requirements of CPLR 5015(a)(1) by providing a reasonable excuse for the failure to appear and demonstrating a meritorious cause of action or defense.17

A dismissal pursuant to CPLR 3216, however, is typically rendered on the motion of the party who served the 90-day demand. The motion, whether brought on by notice or order to show cause, provides the plaintiff with an opportunity to demonstrate that she has a reasonable excuse for her failure to comply with the demand and a meritorious cause of action, or to argue that dismissal is an inappropriate penalty. Therefore, a plaintiff aggrieved by an order dismissing her complaint pursuant to CPLR 3216 should not be able to seek relief under CPLR 5015(a)(1); her remedy is to take a timely appeal from the order, move for relief pursuant to CPLR 2221, or both. However, CPLR 5015(a)(1) may be utilized by a party whose action was dismissed pursuant to CPLR 3216 where the party defaulted in opposing the motion to dismiss (e.g., failed to submit papers in opposition).18

Nevertheless, there is authority for the proposition that a court can utilize CPLR 5015(a)(1) to vacate a want of prosecution dismissal.19 This proposition is difficult to square with the purpose of CPLR 5015(a)(1), which is to accord an opportunity to be heard to a party who was not heard before a judgment or order was executed. It is submitted that the real source of a court’s power to vacate a dismissal issued pursuant to CPLR 3216 is the inherent authority the court possesses to vacate its judgments and orders in the interest of justice. Absent a change in the decisional law, however, a party seeking to vacate a dismissal rendered under CPLR 3216 should satisfy the requirements of CPLR 5015(a)(1)-a reasonable excuse for the “default” and a meritorious cause of action.

CPLR 5015(a)(1) plays no role in motions to vacate dismissals rendered pursuant to CPLR 3404. Rather, a plaintiff seeking to restore an abandoned action must demonstrate: (1) a meritorious cause of action, (2) a reasonable excuse for the failure to restore the action within the one year period, (3) lack of intent to abandon the action, and (4) lack of prejudice to the plaintiff’s adversaries.20

This four-part showing is the product of evolving case law and each of the elements were factors considered by the courts when reviewing motions to vacate dismissals rendered under CPLR 3404’s predecessor, Rule 302 of the Rules of Civil Practice.21

Supporting Papers

Two deficiencies in movants’ papers are frequently highlighted by the courts in denying motions to vacate laxness dismissals: failure to substantiate the excuse and failure to establish a meritorious claim.

Regardless of the excuse proffered for the defaulting conduct, the movant should substantiate it with some evidentiary material. Where the fault lies with someone other than the attorney (e.g., the party herself), that person should provide a detailed affidavit outlining her excuse for the conduct that led to the dismissal. Documentation corroborating the proffered excuse will increase the likelihood that the excuse will be found reasonable by the court and bolster the record should an appeal follow.22

The typical excuse raised by an attorney responsible for a laxness dismissal is “law office failure.”23 A claim of law office failure should be detailed by the attorney in her affirmation in support of the motion to vacate or in the affidavit of another who has first hand knowledge of the circumstances surrounding the law office failure (e.g., a secretary). The attorney must ensure that the circumstances surrounding the law office failure are spelled out in the affirmation or affidavit; perfunctory, conclusory or vague assertions of law office failure are not sufficient.24

The courts are reluctant to accept an attorney’s characterization of the merits of her client’s claim.25 Therefore, it is incumbent upon the movant to demonstrate the merits of her claim through proof in admissible form. The movant’s burden in this regard is not heavy; she need only make a prima facie showing that her claim has merit (i.e., provide evidence supporting each element of the claim).26 In most cases, such a showing can be made through the affidavit of a person with first-hand knowledge of the facts giving rise to the claim,27 a pleading verified by a party,28 deposition testimony, documentary evidence, or some combination thereof. Certain claims, however, such as medical malpractice and lack of informed consent, generally require expert evidence (e.g., affirmation or affidavit of an expert).29

Conclusion

Given the plethora of case law regarding CPLR 3216, CPLR 3404 and §202.27, the phrase “laxness dismissals” should be incorporated into the lexicon of every practitioner who litigates civil actions in Supreme Court. Understanding the applicability of these devices and the procedures for vacating dismissals rendered pursuant to them are valuable skills. The greatest skill, of course, is avoiding situations in which knowledge of the latter is required to save a case compromised by a laxness dismissal.

John R. Higgitt is the law clerk to Associate Justice James M. McGuire, Appellate Division, First Department. The views expressed here are his own. Richard W. Chen, a second-year law student who served as Justice McGuire’s judicial intern last summer, assisted in the editing of this article.

Endnotes:

1. See Basetti v. Nour, 287 AD2d 126, 134 (2d Dep’t 2001).

2. This article is focused solely on laxness dismissals of civil actions in Supreme Court and County Court. The lower courts have their own rules regarding laxness dismissals and restoration of actions (see e.g., 22 NYCRR 208.14 [New York City Civil Court]; 22 NYCRR 210.14 [city courts outside New York City]; 22 NYCRR 212.14 [district courts]; see also Chavez v. 407 Seventh Avenue Corp., 10 Misc 3d 33 [App Term, 2d & 11th Jud. Dists. 2005] [holding that CPLR 3404 applies to actions pending in NYC Civil Court] ).

3. See Siegel, NY Practice, at 625 (4th ed.).

4. Dismissals pursuant to CPLR 3216 generally occur in the context of a defendant moving to dismiss a plaintiff’s complaint. The statute, however, applies to counterclaims, cross-claims and third-party claims (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3216:9).

5. See Darko v. New York City Trans. Auth., Misc 3d-, 819 NYS2d 456 (Sup Ct, Bronx County, June 28, 2006).

6. See Grant v. City of New York, 17 AD3d 215, 216-217 (1st Dept. 2005).

7. See id.

8. CPLR 3216(e).

9. See Lopez Imperial Delivery Service, Inc., 282 AD2d 190, 193-194 (2d Dept. 2001).

10. See Basetti, 287 AD2d at 134.

11. See Lee v. Chion, 213 AD2d 602 (2d Dept. 1995); Siegel, NY Practice §376, at 631 (4th ed.).

12. See Campos v. New York City Health & Hosps. Corp., 307 AD2d 785, 786 (1st Dept. 2003).

13. See Clarke v. United Parcels Service, Inc., 300 AD2d 614 (2d Dept. 2002) (plaintiffs could not obtain relief under CPLR 5015[a][1] where judgment dismissing their complaint based upon their failure to comply with a conditional order of preclusion was product of motion made on notice); Pergamon Press, Inc. v. Tietze, 81 AD2d 831 (2d Dept. 1981) (defendant could not obtain relief under CPLR 5015[a][1] where order granting plaintiffs’ motion to strike defendant’s answer pursuant to CPLR 3126 was rendered on notice and he contested the motion); see also Hartloff v. Hartloff, 296 AD2d 847 (4th Dept. 2002); Pinapati v. Pagadala, 244 AD2d 676 (3d Dept. 1997); Achampong v. Weigelt, 240 AD2d 247 (1st Dept. 1997).

14. See Champion v. Wilsey, 150 AD2d 833 (3d Dept. 1989).

15. See Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 (2003), citing Ladd v. Stevenson, 112 NY 325, 332 (1889); Ruben v. American & Foreign Insurance Co., 185 AD2d 63, 67 (4th Dept. 1992).

16. McKenna v. County of Nassau, 61 NY2d 739 (1984).

17. See Espinoza v. Concordia Intl. Forwarding Corp., -AD3d-, 2006 NY Slip Op. 06304 (Aug. 24, 2006; 1st Dept.) (reasonable excuse and meritorious claim or defense must be proffered to vacate dismissal pursuant to §202.27; however, party may avoid making dual showing by commencing new action within applicable statute of limitations).

18. See Parker v. State Farm Mutual Automobile Insurance Co., 26 AD3d 719 (3d Dept. 2006); Farhadi-Jou v. Key Bank of New York, 2 AD3d 1041 (3d Dept. 2003); see also Daulat v. Helms Bros., Inc., -AD3d- (Aug. 8, 2006; 2d Dept.).

19. See Johnson, 287 AD2d at 236; Lopez, 282 AD2d at 197.

20. See Lopez, 282 AD2d at 197.

21. See e.g. Boyle v Krebs & Schulz Motors, Inc., 18 AD2d 1010 (2d Dept. 1963).

22. Cf. Siskin v 221 Sullivan Street Realty Corp., 180 AD2d 544 (1st Dept. 1992); Zolov v Donovan, 138 AD2d 484 (2d Dept 1988).

23. See CPLR 2005.

24. See Solomon, supra; Abrams v City of New York, 13 AD3d 566 (2d Dept. 2004).

25. See e.g., Zuckerman v City of New York, 49 NY2d 557, 563 (1980).

26. See Polir Constr. Inc. v Etingin, 297 AD2d 509 (1st Dept. 2002).

27. Cf. Fekete v Camp Skwere, 16 AD3d 544 (2d Dept. 2005); Ruggiero v Elbin Realty Inc., 51 AD2d 1011 (2d Dept. 1976).

28. See CPLR 105(u).

29. See Williams v D’Angelo, 24 AD3d 538 (2d Dept. 2005); Burke v Klein, 269 AD2d 348 (2d Dept. 2000); see also Fiore v Galang, 64 NY2d 999 (1985).”

The law suit was over missing African art. Plaintiff claims that defendant’s attorney falsely represented to the court that the art had been seized by Manhattan prosecutors. It was not, and defendant absconded with the art. Yesterday, Judge Cote of SDNY denied summary judgment, and ruled that the case had to be tried. There were other legal malpractice third-party claims left in place. The case is Trepel v. Dioppold, 04 Civ 8310. The case

It is the general rule in the United States, and New York that the client, either for good cause or for no cause, may terminate an attorney’s representation at any time. While the difference between “for cause” and “no cause” has been endlessly debated, a “for cause” termination may be based upon misconduct which does not rise to the level of attorney malpractice.in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination. Termination for cause has arisen in many situations in which malpractice was not even discussed, much less claimed. Substantial delays in prosecuting the case, failure timely to obtain medical records, failure to retain an employment [which] contravenes specific legal requirements is sufficient, abandonment of a case, a conflict of interest, a refusal personally to try a case, a failure to disclose a settlement offer, are all examples of misconduct which does not amount to malpractice.

The difference flows logically from the question of damages. In malpractice there is a positive claim for damages, over and above fee considerations from the attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. As one might expect, the burden of proof for malpractice requires much more than the burden of proof to decide between “good cause” and “no cause.”

The doctrine of Strategic choice is a high hurdle for the attorney malpractice plaintiff. Courts often determine that “mere differences of opinion concerning strategy do not rise to the level of discharge for cause” or in other words, malpractice.A current case, Friedman v. Park Cake, Inc., reported in the New York Law Journal http://www.nylj.com on 8/15/05, decided by Justice Shafer of Supreme Court, New York County, found that the outgoing attorneys were due their attorney fees, and that their discharge was not “for cause”, but rather, without cause. Her decision was based upon an analysis of the record and a decision that attorney Mark E. Seitelman http://www.seitelman.com represented his client with “reasonable care, skill and dilligence….”

Plaintiff had a parcel of land which the state wanted in NJ. As is the custom, the state offers too little, and plaintiff has to scramble to prove the added value. Plaintiff hired law firm 1 on a contingent basis, and the did succeed in raising value; but not enough for plaintiff. He then hired law firm 2 and 3,and while the value did go up further, he was sued by law firm 1 for contingent fees. Here he loses, but did get the right to bring a belated legal malpractice case, the quality of which the appellate court denigrated. Details.

Everyone, except for the parties to this case are famous. Plaintiff’s decedent was supposed to have a case filed. The law firm did not, and then broke up. One partner became a Civil Court Judge. Plaintiff’s attorney is exceedingly well known as a Brooklyn power center – several years ago he was involved in a headline generating episode revoving around court fiduciary assignments. Here is the story of the possibly fake court stamps for the year 2002. Story.

Today’s NYLJ reports that “A New York court has allowed Chadbourne & Parke to proceed with a fraud claim against the business manager of a former client who promised his boss’ legal bill would be paid out of proceeds from the sales of an Upper East Side townhouse and a Princeton estate.

Most legal fee claims are based on breach-of-contract theories, but Manhattan Supreme Court Justice Debra A. James (See Profile) said Chadbourne had adequately shown it had been injured by misrepresentations and false statements collateral to the contract.”