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  • Bill Greenberg

Calendar Control 2011 - Prejudice to the Defendant?

It has always been the case that prudence required mindfulness of those calendar control mechanisms available to the judiciary to remove and dismiss cases. But now a common law doctrine has apparently emerged about which the vigilant practitioner should be cognizant-laches. This common law approach adds to the arsenal available to courts to dismiss cases which may crowd dockets.

A quick review of the existing statutory mechanisms is useful: CPLR §3126 (dismissal with prejudice as a sanction for contumacious and willful failure to comply with discovery obligations); CPLR §3216 (dismissal for failure to resume prosecution after receipt of a 90 day notice or its equivalent); CPLR § 3404 (dismissal for failure to restore to the trial calendar a post note of issue case within one year of its removal); and Uniform Rule 202.27 (dismissal for failure to attend a regularly scheduled court appearance). These mechanisms are indeed compelling tools with which the court may dispose of many sluggish cases complicating its workload. But, what if the subject case's procedural history does not fall under the neat parameters for dismissal premised upon recognized statutory authority? Apparently, the court may find within its inherent authority the power nevertheless to dismiss on the common law grounds of laches. Rosenstrauss v. Women's Imaging Center of Orange County, 56 A.D.3d 454, 866 N.Y.S.2d 759 (2nd Dept. 2008).

In Rosenstrauss the court found that-even though the case was a pre-note of issue case and not subject to dismissal under CPLR §3404 as determined by the lower court-the lower court's ruling would not be disturbed because the plaintiff had waited eleven years before moving to vacate the erroneous dismissal order. Additionally, none of the other statutory mechanisms allowed for dismissal. There was no failure to attend a scheduled court appearance, no 90 day notice or its equivalent had been served upon plaintiff's counsel, and there was no issue of any willful failure to participate in discovery. Despite the fact that the lower court's order in Rosenstrauss did not conform to the statutory requirements under CPLR §3404, and the laches analysis adopted in Rosenstrauss seems somewhat inconsistent with the Court of Appeal's opinion in Chase v. Scavuzzo, 87 NY 2d 228, 638 NYS 2d 587 (1995) (courts without power to dismiss for general delay), the Rosenstrauss court nevertheless determined that the laches doctrine prevented the plaintiff from vacating the lower court's order of dismissal.

The laches defense is not traditionally used as a mechanism for calendar control; the defense is generally found as a defense to an equitable cause of action requiring a showing of prejudicial delay. See Siegel's Practice Review at 203 (2008). But, where there has been an inordinate delay in prosecution-such as eleven years as was the case in Rosenstrauss-the doctrine seems now to be an arrow in the court's quiver available to assist in dismissal of mired cases. See Arroyo v. Board of Education, 25 Misc. 3d 1229(A), 906 NYS2d 770 (Sup. Ct. Kings Co. 2009); Pickett v. Federated Department Stores, Inc., 79 AD3d 1116, 914 NYS2d 636 (2nd Dept. 2010); Rodriguez v. Mitchell, 81 AD3d 624, 916 NYS2d 784 (2nd Dept. 2011).

In Arroyo the plaintiffs waited thirteen years before seeking to restore their case, which was dismissed after a failure to attend a regularly scheduled court conference. The court restored the case pursuant to CPLR 5015. See e.g. Campos v. New York City Health and Hospitals Corp., 307 AD2d 785, 763 NYS2d 292 (1st Dept. 2003). Upon restoration, the plaintiffs' case in any event was dismissed on grounds of laches; the court resting its decision upon the prejudice to the defendant arising from plaintiff's inordinate delay in prosecution.

Because the plaintiffs had failed to file a note of issue for two weeks after having been ordered to do so, the lower court dismissed the plaintiffs' case-but granted a motion to restore the case to active status eight years after the dismissal. In Pickett, the Second Department reversed the lower court and dismissed the complaint on laches grounds, although there was no basis to dismiss under CPLR 3216-90 days having not elapsed between the lower court's order to file the note of issue and the lower court's order of dismissal. See Bowman v. Kusnick, 35 AD3d 643, 827 N.Y.S.2d 258 (2nd Dept. 2006) (CPLR §3216 may not be invoked as grounds for dismissal unless 90 days has elapsed from the date of the preliminary conference order.)

Ten years after the court marked a plaintiff's case "inactive pre-note", the plaintiff moved to restore the action to active status, but plaintiff's motion was denied on laches grounds, the court having found that plaintiff's inexcusable delay had prejudiced the defendant. Rodriguez, id.

The emergence of laches as a subjective device for calendar control is a development of which the practitioner should be aware. The long dormant and "comatose " case, while not technically subject to dismissal under existing objective statutory mechanisms, may no longer survive the court's subjective assessment that there has been laches in the prosecution-with resulting prejudice to the defendant. In which case, that court may nevertheless dismiss even though there are no grounds for dismissal under CPLR §§ 3126, 3216, 3404 or Uniform Court Rule 202.27.

To date, dismissal for laches has been invoked only for cases inactive for at least eight years. Bowman v. Kusnick, id. But, the laches ground for dismissal has now apparently entered the court's arsenal and is apparently available as a ground to dismiss older relatively inactive cases. In which case, the practitioner may expect opposing counsel to routinely urge dismissal on laches grounds-whenever the defendant can demonstrate that a delay in prosecution has caused prejudice to the defendant. In short, prejudice to the defendant occasioned by the delay of prosecution-even without resort to a 90 day notice pursuant to CPLR 3216-may become a basis for dismissal.

Only time and future court decisions will tell whether the laches ground for calendar control will expand and become a routine basis for dismissal. Until then, the practitioner should be mindful not allow any unwarranted delay to impede prosecution. For even if the statutory grounds for dismissal do not apply, the practitioner may be vulnerable to a dismissal on laches grounds if the defendant can show prejudice arising the practitioner's unwarranted delay in prosecution.

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