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Failure To Start A Trial Not Fatal To The Case (NY)

November 5, 2019

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<p style="text-align: justify;">In <em><a href="">Quercia v. Silver Lake Nursing Home</a>,</em> the plaintiff filed a negligence claim and violation of New York’s Public Health Law alleging she sustained injuries while in the care of the defendant nursing home.  The lawsuit was filed in 2005, and in 2016, the case was set for jury selection in Richmond County.  However, plaintiff’s attorney failed to appear due to his engagement with a parole revocation hearing in a criminal proceeding, and the Supreme Court adjourned the matter to a later date.  Plaintiff’s attorney again failed to appear for jury selection, sending another attorney to advise the Court that he was still engaged with four parole revocation hearings in criminal proceedings and could not proceed with jury selection.  In response, the Court granted the defendant's oral application to dismiss the complaint based upon the plaintiff's failure to proceed with jury selection.</p>
<p style="text-align: justify;">The plaintiff filed a motion pursuant to CPLR 5015(a)(1) to vacate the order and to restore the action to the trial calendar.  The court denied the plaintiff's motion.</p>
<p style="text-align: justify;">The plaintiff then appealed the dismissal to the Appellate Division, Second Department, arguing that the Supreme Court misapplied its discretion in denying the plaintiff’s motion to vacate the default.  In reviewing the Supreme Court’s decision, the Appellate Division addressed the circumstances when a motion to vacate is proper and discussed competing factors surrounding expeditiously handling cases and resolving cases on their merits.</p>
<p style="text-align: justify;">The Appellate Division found that, “in moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing for a scheduled trial date, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.”  While the Appellate Division conceded that “the determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court," it held that “in making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits.”</p>
<p style="text-align: justify;">Applying these principles, the Appellate Division held that under the circumstances of this case, the plaintiff demonstrated a reasonable excuse for the default based upon his engagement in other matters.  The Appellate Division also took time to mention in the decision that there was no evidence that plaintiff’s inability to appear on the two prior dates, was willful, and that the engagement on the jury selection dates with criminal proceedings constituted a reasonable excuse for the default.    Finally, the Court noted that "the severe remedy of dismissal, with its concomitant deprivation of one's day in court, is hardly the only tool in the judicial case management tool box."</p>
<p style="text-align: justify;">Thank you to George Parpas for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.</p>


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