Legal malpractice is defined as a deviation or departure from good and accepted practice, which proximately damages a client, and who “but for” the deviation would have had a better or different outcome, and in which there are ascertainable damages. Guiles v. Simser, 35 AD3d 1054 [3d Dept. 2006]. Legal malpractice cases arise from a plethora of causes, including the failure to commence an action within the applicable statute of limitations, the failure of adequate discovery, preclusions of evidence [and the consequent inability to prove an essential element] and errors at trial. Calendar and associated dismissals form a major portion of the oeuvre of legal malpractice. This article attempts an encyclopedia of intra-litigation dismissals, excluding the more well known CPLR 3211 and CPLR 3212 dismissals.

Finality and disposition of cases are the stated objectives of the New York courts. Finality and disposition may be reached through trial, accelerated judgment through CPLR Article 32, and discovery motion practice and calendar control mechanisms. Civil litigation practitioners daily utilize or oppose a family of intra-case dismissal or default mechanisms. Each might be remedied; each by a unique method. Whether plaintiff or defendant, the litigator will face one or another of these devices. Let us examine them from beginning to end of a typical litigated civil case.

Not Filing Affidavit of Service

Problem: CPLR 306(b) requires “Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, third-party summons and complaint, or petition, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires.

“If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

Remedy: Seek the court’s discretionary leave to file late. In the motion show diligence in prosecuting this action, proof of attempts to serve the corporate defendant by service, merits of case, and offer excuses for the delay in serving the defendant other than conclusory statements alleging “clerical oversight due to law office failure.” Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]; Baione v. Central Suffolk Hosp., 14 AD3d 635 [2d Dept. 2005]; Winter v. Irizarry, 300 AD2d 472 [2d Dept. 2002]; Matter of DeSilva v. Town of Brookhaven, 299 AD2d 409 [2d Dept. 2002]. Note that there are two separate standards under CPLR 306(b) motions, “good cause” and “interests of justice.”

Default for Not Answering

Problem: A complaint must be answered within 20 or 30 days after service or completion of service pursuant to CPLR 320. If an answer is not served within this period, a default judgment may ensue.

Remedy: CPLR 5015. “The court which rendered a judgment or order may relieve a party from it upon such terms as may be just on motion” upon the ground of excusable default, if such motion is made within one year on the basis of excusable default, newly-discovered evidence, fraud or lack of jurisdiction. Along with excusable default, you must show a meritorious cause of action or defense. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Landa, Picard & Weinstein v. Ruesch, 102 AD2d 813 [2d Dept. 1984].

The “meritorious defense” requirement does not present a particularly high barrier. The defendant need not necessarily present admissible evidence of the type required on a motion for summary judgment. Goldman v. City of New York, 287 AD2d 482 [2d Dept. 2001]. The “quantum of proof” required is “not as great” as would be needed to oppose a motion for summary judgment. Clark v. MGM Textiles Industries Inc., 307 AD2d 520 [3d Dept. 2003].

CPLR 3012 (d) permits a court to order acceptance of a late answer. One potential factor in the court’s discretionary decision is the potential merits of the defense in the answer. Other factors are the length of delay, the excuse offered, the absence or presence of willfulness and prejudice. Guzetti v. City of New York, 32 AD3d 234 [1st Dept. 2006]. There is a very definite difference between the four departments. In the First and Third departments no affidavit of merits is required, in the Second Department, one is required.

Reply to Counterclaims

Problem: Counterclaims require a reply, or they are deemed admitted. Many practitioners forget that the answer may contain a counterclaim no less effective and powerful than the complaint itself.

Remedy: CPLR 5015 is the remedy for this default in the exact same fashion as for a default in answering the complaint. Courts seem a little less likely to deny the motion to vacate a default in reply than a default in answering. A party seeking relief from an order or judgment on the basis of excusable default pursuant to CPLR 5015 (a) (1) must provide a reasonable excuse for the failure to appear and demonstrate the merit of the cause of action or defense. Eugene Di Lorenzo Inc. v. A.C. Dutton Lbr. Co, supra; Navarro v. A. Trenkman Estate Inc., 279 AD2d 257 [1st Dept. 2001]; Mediavilla v. Gurman, 272 AD2d 146 [1st Dept. 2000].

The determination of the sufficiency of the proffered excuse and the statement of merits rests within the sound discretion of the court. Navarro v. A. Trenkman Estate Inc., supra; 65 N. 8 St. HDFC v. Suarez, 18 AD3d 732 [2d Dept. 2005].

Not Appearing at Conference

Problem: Attorney misses a conference appearance, and the court dismisses the action pursuant to Uniform Rule 22 NYCRR 202.27.

Remedy: “The dismissal of an action pursuant to 22 NYCRR 202.27 based upon a plaintiff’s failure to appear at a calendar call should be vacated where the plaintiff shows a reasonable excuse for the default and a meritorious cause of action.” Polir Constr. Inc. v. Etingin, 297 AD2d 509, 511 [1st Dept. 2002]. Note that this dismissal requires an affidavit of merits, and in a close case, the affidavit will have to set forth the case better than a simple conclusory statement of fact.

Discovery Demands

Problem: Lack of compliance with discovery demands reduced to a preliminary conference or compliance conference order. CPLR 3216 permits dismissal of an action at least one year after joinder.

Remedy: CPLR 3126 authorizes a court to fashion an appropriate remedy when a party refuses to obey an order of disclosure or willfully fails to disclose information. The choice of remedy lies within Supreme Court’s discretion and is not disturbed absent clear abuse, despite a general policy which favors resolution of disputes on their merits. Biggs v. O’Neill, 309 AD2d 1110, [3d Dept. 2003]; Kinge v. State of New York, 302 AD2d 667 [3d Dept. 2003].

This is especially true when a party disobeys a court order and “by his [or her] conduct frustrates the disclosure scheme provided by the CPLR . . . ” Martin v. Brooks, 270 AD2d 538 [3d Dept. 2000], citing Zletz v. Wetanson, 67 NY2d 711 [1986]; Kihl v. Pfeffer, 94 NY2d 118 [1999]; Reynolds Securities Inc. v. Underwriters Bank & Trust Co., 44 NY2d 568 [1978].

Note of Issue

Problem: Note of Issue not filed by the preliminary conference date. Motion to dismiss is made, without any CPLR 3216 notice.

Remedy: Neither CPLR 3404 nor CPLR 3216 apply to pre-note actions. Andre v. Bonetto Realty Corp., 32 AD3d 973 [2d Dept. 2006]; Baczokowski v. D.A. Collins Constr. Corp., 89 NY2d 499 [1997]. A motion should be made which sets forth the actions of plaintiff in prosecuting the case, demonstrates diligence in moving forward, and recites that there has been no prejudice to defendants. It may tactically be better to annex an affidavit of merits, but none is required for this particular motion.

CPLR 3216 Notice

Problem: Defendant wants case to proceed and serves a CPLR 3216 Notice. The notice must be in writing and served by certified mail.

Remedy: Plaintiff has two choices upon receipt of a CPLR 3216 Notice. Plaintiff can simply file a note of issue, or can make a motion, within 90 days, seeking an extension of the time in which to file a note of issue. Grant v. City of New York, 17 AD3d 215 [1st Dept. 2005]. If a note of issue is not filed and a motion to dismiss is made, plaintiff must oppose with a valid [reasonable] excuse for failing to proceed and/or file a note of issue. The court uses CPLR 2004 to gauge whether to grant the motion. Used in the analysis are the merits of the case, the length of extension sought, prejudice to defendant.

Dismissal Under CPLR 3404

Problem: Case is “marked” off the trial calendar, and defendant seeks dismissal after a year.

Remedy: CPLR 5015(a)(1) is the vehicle for plaintiff to move to vacate a judgment on the ground of excusable default. As always, a reasonable excuse and a meritorious cause of action are required for a successful motion, which must be made within one year of service of the judgment or order with written notice of entry. Champion v. Wilsey, 150 AD2d 833 [3d Dept. 1989].

Conclusion

Litigation is a back and forth set of tasks, requiring one side or the other to move forward, respond, or allow the litigation to end. The timing and performance of each step requires a response, and in its absence permits a potential dismissal. Remedies are available, and the skilled practitioner must understand both the problem and its solution. In each case, a timely response or appearance eliminates any need for remedy. No remedy will be successful in all instances. In almost every situation an affidavit of merits, with evidentiary support is preferred, or necessary. It is rarely a mistake to include such an affidavit.

Andrew Lavoott Bluestone is a sole practitioner, specializing in legal malpractice litigation in Manhattan. His blog is at blog.bluestonelawfirm.com.