Second Department Upholds Trial Court’s Decision to Not Vacate Dismissal

When New York State Court of Appeals Chief Justice, Janet DiFiore, assumed her position, she set the goal of reducing the backlog of cases across the state.  In the case of Melendez v. Stack, the Second Department decided in line with that goal in refusing to vacate a dismissal after a Plaintiff’s attorney did not have a reasonable excuse for their failure to proceed to trial.

The case involved a claim for personal injuries allegedly sustained by the Plaintiff from a motor vehicle accident which occurred on August 11, 2010.  After substantive motions were filed, there were two defendants that remained in the case, LaCarabba and Stack.  Following the motions, the Plaintiff filed a note of issue and certificate of readiness on August 13 2015.  The Court then scheduled the trial to begin on November 15, 2016. That initial date was then adjourned and the parties were told they would be picking a jury on December 5, 2016, with the trial scheduled to begin on December 12, 2016.  Once again, the matter was adjourned and the parties were told they would be picking a Jury on January 17, 2017 with the trial slated to begin on January 25, 2017.

The parties appeared for jury selection on January 25, 2017, and the Court advised them that the trial part was not available that day, but it would be the next.  The Plaintiff told the court that he would not be able to proceed the following day.  Against the defendant’s objection, the Court granted an adjournment to the Plaintiff until January 30th.

The parties arrived to pick a jury on January 30th, but the plaintiff’s attorney stated that he was unable to proceed with jury selection and that he had issues with his expert witness. Therefore, plaintiff submitted an application for another adjournment.  In response to the application, defendant not only expressed their opposition to the application, but also moved to dismiss the application pursuant to the CPLR and 22 NYCRR 202.27(b).  Both provisions allow a dismissal for a plaintiff’s failure to proceed to trial.  In response, the Court attempted to work with the Plaintiff by allowing the parties to pick a jury that day, start the trial on February 6th or 7th and allow the Plaintiff’s witness to testify on February 9th.  The Plaintiff again expressed is unwillingness to proceed to trial because his witness “was not available then.”  The Court responded by granting the defendant’s motion to dismiss.

Approximately 6 months later, the Plaintiff moved to vacate the dismissal of the action and restore it to the trial calendar.  The Plaintiff argued that his witness’ unavailability was a reasonable excuse for the inability to proceed to trial, and therefore, the case should be restored to the trial calendar.  The Plaintiff elaborated on his excuse by stating the expert witness was scheduled to see patients during the week of January 30, 2017.  After analyzing the reasonableness of the excuse, the Court denied Plaintiff’s motion to restore to the active calendar.  The Plaintiff then appealed.

The Second Department began their analysis of the lower Court’s decision by recognizing that when a party is unable to proceed to trial the court may: (1) adjourn the trial to another day; (2) mark the case off, or strike it from the calendar; (3) vacate the Note of Issue; or (4) dismiss the complaint. When determining whether to restore a dismissed case, the determination of whether an excuse is reasonable, is well within the sound discretion of the lower court.

In analyzing the case through the above standards, the Second Department panel found that the Supreme Court properly exercised its discretion in dismissing the case.  The Court further pointed to the fact that since the Plaintiff did not provide evidence that the expert was unavailable for the February 9th date, he did not meet his burden of establishing a reasonable excuse.

To read a full copy of the decision click here.

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