SANCHEZ v. JAVIND APT CORP (1998)

Order, Supreme Court, New York County (Stuart Cohen, J.), entered November 19, 1996, which denied plaintiff's motion, pursuant to CPLR 3404, to restore the action to the trial calendar, unanimously reversed, on the law and the facts, without costs, and the motion granted on the condition that plaintiff's counsel pay $5,000 to defendant.

On February 3, 1992, the ceiling of plaintiff's bathroom collapsed, causing permanent injuries to his neck, back and head.   Plaintiff commenced a negligence action against defendant, the owner of his apartment building, on April 20, 1992.   In opposing plaintiff's attempts to restore the case to the trial calendar after several delays had caused it to be marked off, defendant has not denied that plaintiff has a meritorious cause of action.   Rather, defendant contends that the action should be deemed abandoned because of plaintiff's counsel's repeated failure to appear at pre-trial conferences or to argue the motions he submitted.   A brief time line follows:

 CPLR 3404 provides that a case that has been marked off the calendar (e.g., for plaintiff's failure to prosecute), and not restored within one year, shall be deemed abandoned.   However, the statute merely creates a presumption of abandonment, which is rebuttable by proof that litigation is actually in progress (Chin v. Ying Ping Fung, 126 A.D.2d 415, 416, 510 N.Y.S.2d 119).   To overcome this presumption, plaintiff must demonstrate a meritorious cause of action, a reasonable excuse for the delay, the absence of prejudice to the opposing party and a lack of intent to abandon the action (Rodriguez v. Middle Atlantic Auto Leasing, 122 A.D.2d 720, 722, 511 N.Y.S.2d 595 appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317).

 Under CPLR 2005, law office failure is no longer a per se unreasonable excuse for a party's default or delay.   The extent of counsel's negligence must instead be weighed against the merits of the claim and the lack of prejudice to the other side.  “A client should not be deprived of his day in court by his attorney's neglect or inadvertent error, especially where the other party cannot show prejudice ․ [and] the complaint has merit” (Paoli v. Sullcraft Mfg. Co., 104 A.D.2d 333, 334, 479 N.Y.S.2d 37).

Here, plaintiff's counsel was negligent, but not willfully in default, when he repeatedly failed to learn the time and place of his required pre-trial court appearances and neglected to follow proper procedures for opposing defendant's efforts to dismiss the case.   Nevertheless, in Martinez v. NYC Transit Authority, 183 A.D.2d 587, 587, 584 N.Y.S.2d 8, we restored an action to the trial calendar despite the “egregious” negligence of plaintiff's attorneys, because plaintiff had shown a lack of prejudice and made out a meritorious prima facie case.

Similarly, in Rosado v. NYC Housing Authority, 183 A.D.2d 640, 641, 585 N.Y.S.2d 11, we restored a case that had been stricken two years earlier, due in part to plaintiff's counsel's failure to appear at pre-trial proceedings and failure to argue the restoration motion.   Focusing on the fourth factor, plaintiff's lack of intent to abandon the action, we concluded that “[c]ounsel's letters of inquiry to his adversary concerning the progress of discovery and need to set a timetable for restoring the action, in addition to continued motion practice, demonstrate[d] his interest in pursuing the litigation” after the case was marked off (id. at 642, 585 N.Y.S.2d 11).

 In the case at bar, after the court marked the case off the calendar in August 1994, plaintiff engaged in sufficient discovery and motion practice to demonstrate an intent to pursue the litigation.   In October and November 1994, plaintiff exchanged two medical reports with defendant.   In June 1995, within the one-year limit set forth in CPLR 3404, plaintiff moved to restore the action to the calendar, a motion which was denied due to both parties' failure to appear.   Subsequently, plaintiff's counsel made repeated (if not particularly competent) attempts to restore the action.

The record shows that plaintiff, defendant and the building manager (i.e., most, if not all, of the relevant witnesses) have already been deposed, and that plaintiff has provided defendant with the medical reports detailing his injuries.   Thus, this is not a case where the lapse of time causes prejudice to the other side because eyewitnesses no longer recall the event clearly (cf., Rodriguez, 122 A.D.2d at 722, 511 N.Y.S.2d 595).   Any prejudice suffered by defendant is too slight to justify denying plaintiff's motion.   However, in light of the lapse of time and plaintiff's counsel's lack of diligence, we deem it appropriate to require the plaintiff's attorney to pay the defendant $5,000, as a condition to restoring the action to the trial calendar.

MEMORANDUM DECISION.