Thursday, July 14, 2016

CPLR 3216 and restoring a case to the calendar.

Practice point:  In this action to recover damages for personal injuries, the Appellate Division reversed the denial of plaintiff's motion and granted his motion to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to the active calendar, and to extend the time to file a note of issue.

Plaintiff's counsel affirmed that he never received a copy of the Supreme Court's order which set the deadline for filing the note of issue, and plaintiff promptly moved for relief shortly after learning that the case had been marked "disposed." Further, the plaintiff demonstrated a potentially meritorious cause of action through the submission of his deposition transcript. Under these circumstances, the Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiff's failure to meet the deadline for filing a note of issue.

Student note:  CPLR 3216 is extremely forgiving, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action, pursuant to CPLR 3216[e], a dual showing of justifiable excuse and meritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal of the action.

Case:  Bell v. United Parcel Serv., Inc., NY Slip Op 05110 (2d Dep't June 29, 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of collateral estoppel.