New York

The New York Court of Appeals addressed a CPLR 3404 recently in Okun v. Tanners.  In Okun, the "law office failure" excuse could not win the day for the plaintiff.  The case concerned CPLR 3404, which provides that after a case is struck from the calendar because of a missed calendar call, it must be restored within a year or will be dismissed as abandoned.

On November 11, 2002, the plaintiff in Okun commenced a breach of contract action against the 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 the 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, the defendant's counsel mailed a copy of the order to the plaintiff's counsel. 

In January 2007, the defendant moved to dismiss the action based on the plaintiff's failure to move to restore the action within one year, and the plaintiff cross moved to restore the action.  In support of the cross motion, the plaintiff's counsel stated that he had no notice of the May 9, 2005 conference, insinuated that he had no notice that the action had been struck from the trial calendar, and asserted that the ???plaintiff never actively manifested an interest to abandon the prosecution of this matter.???  At oral argument on the motions, the plaintiff???s counsel offered the following excuse for the failure to prosecute: ???[F]rom May 9th [, 2005] . . . what happened to this case can only be called law office failure. It just fell through the cracks.???

The Court of Appeals held that the plaintiff's conclusory and unsubstantiated claim of law office failure was not a reasonable excuse for 20-month delay in pursuing breach of contract action after it was struck from calendar.  The Court also held the plaintiff's inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

The Court???s terse memorandum opinion carriers several lessons.  First, a motion to dismiss the matter after the plaintiff has moved to restore the action to the calendar is unnecessary.  The action is dismissed by operation of law.  Second, a plaintiff will have to come forward with a legitimate excuse for his or her failure to restore the matter; the frequently tossed-around ???law office failure??? excuse does not cut it.

It's extremely helpful to read the Appellate Division, First Department's Majority and Dissenting opinions, here.