Real Estate Law

CIVIL COURT CASES CAN REMAIN IN LIMBO

For some, "limbo" describes a transitional place between heaven and hell. 

The word is also commonly used to describe a matter's neglect or a period of inaction. 

There are a number of cases filed with the New York City Civil Court that are neither "here" nor "there," floundering in a suspended state, awaiting activity by their participants. Can these cases be dismissed after a year of inactivity for "failure to prosecute?"

The Appellate Term, 2nd and 11th Judicial Districts, believed so and in Chavez v. 407 Seventh Ave. Corp. applied a state law which governed "supreme court or county court" cases. (CPLR 3404). That particular statute provides that cases marked off or stricken from the calendar, or unanswered on a calendar call, and which are not reactivated or restored within one year, are to be deemed "abandoned" and may be "dismissed without costs for neglect to prosecute." (See, CPLR 3404)

In that particular dispute, Chavez filed a personal-injury lawsuit in 1996 which wasn't marked "ready" for trial until May 31, 2001. Inexplicably, neither Chavez nor his counsel appeared for trial, and the matter was "marked off." Three years later, the defendants moved to dismiss the case on the grounds of abandonment and failure to prosecute. 

Both the Kings County Civil Court and the Appellate Term, 2nd and 11th Judicial Districts, believed that a dismissal was the appropriate result. On April 3, 2007, the Appellate Division, Second Department, reversed.

The AD2 was of the opinion that the state statute did not apply to the New York City Civil Court. And, since that Civil Court's rules currently have "no provision for dismissing an action for neglect to prosecute," the AD concluded the dismissal of Chavez's (albeit inactive) case was in error.

How's that for being resurrected from the dead?

For a copy of the Appellate Division's decision, please use this link: Chavez v. 407 Seventh Ave. Corp.

From Real Estate Law Blog posted 2007-04-13.