Okun v. TannersOkun v. Tanners
The court properly excused plaintiff‘s failure to attend four pretrial conferences, including the May 9, 2005 conference at which the action was struck from the trial calendar, based on plaintiff‘s attorney‘s representation that he did not receive nоtice of any of the conferences (see Muriel v St. Barnabas Hosp., 3 AD3d 419, 420 [2004]; cf. Adames v New York City Tr. Auth., 126 AD2d 462 [1987]), and on the condition that plaintiff pay defendant‘s attorney $250 for each missed conference. Thе court also properly excused plaintiff‘s subsequent delay in restoring the action to the calendar based on plaintiff‘s attorney‘s showing that there was nо intent to abandon the case, that defendant was not prejudiced by the delay, and that the action is meritorious (see Muriel at 420-421; Werner v Tiffany & Co., 291 AD2d 305 [2002]). Concur—Lippman, P.J., Mazzarelli and Sweeny, JJ.
On November 11, 2002, plaintiff commenced this breach of contract action against defendant, and a note of issue was filed on July 23, 2004. On May 9, 2005, Supreme Court struck the action from the trial calendar based on plaintiff‘s counsel‘s failure to appear at four pretrial conferences between January 26, 2005 and May 9, 2005. On the same day the action was struck from the trial calendar, defendant‘s counsel mailed a copy of the order to plaintiff‘s counsel.1
In January 2007, defendant moved to dismiss the action based on plaintiff‘s failure to move to restore the action within оne year, and plaintiff cross-moved to restore the action. In support of the cross motion, plaintiff‘s counsel stated that he had no notice of thе May 9, 2005 conference, insinuated that he had no notice that the action had been struck from the trial calendar, and asserted that “plaintiff never actively manifested an interest to abandon the prosecution of this matter.” Additionally, plaintiff proffered an affidavit attesting to the merits of the action. Supreme Court, in essence, granted plaintiff‘s cross motion on the condition that he pay defendant $1,000. This appeal by defendant ensued.
Supreme Court struck the action from the trial calendar pursuant to
Here, the action was dismissed by operation of law in May 2006, one year after it was struck from the trial calendar. Plaintiff sought to restore the action approximately nine months later, and only after defendant made its unnecessary motion to dismiss the action (see Aguilar v Djonvic, 282 AD2d 366 [2001]). In his affirmation in support of the cross motion, plaintiff‘s cоunsel offered no specific explanation for the nearly two years of delay from the date of the first of the four consecutive pretrial conferences he failed to attend. More to the point, plaintiff‘s counsel offered no specific, let alone reasonable, explanation for this protracted delay (nine months) in moving to restore the action. The only explanation plaintiff‘s counsel gave is the one he stated at oral аrgument before Supreme Court: “from May 9th[, 2005] . . . what happened to this case can only be called law office failure. It just fell through the cracks.”
That a cаse “just fell through the cracks” is a particularly lame—that is to say, unreasonable—excuse. As a species of law office failure, a breed of exсuse that is itself in disrepute, it is as uninformative as it is unpersuasive. Because “[l]aw office failure is rarely an acceptable excuse for failing to exрeditiously vacate a
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 an excuse. Thus, the Dictionary of American Slang defines the phrase “fall (or slip) between (or through) the cracks” as follows: “To be ignored, overlooked, mismanaged, or forgotten” (Dictionary of
Additionally, plaintiff failed to demonstrate a lack of intent tо abandon the action. Once an action is dismissed pursuant to
Plaintiff did nothing to prosecute this action between the date the court struck the matter from the trial calendar and the date he cross-moved to restore it, an application that was оnly made after defendant made its unnecessary motion to dismiss. In fact, nothing in the record suggests that plaintiff engaged in any activity in furtherance of this action follоwing the filing of the note of issue on July 23, 2004. For this reason, the assertion by plaintiff‘s counsel that plaintiff “never actively manifested an interest to abandon” the case is rich in irony but a poor argument.
Accordingly, I would deny defendant‘s motion as moot, the action already having been dismissed, and deny plaintiff‘s cross motion.2