PLAINTIFFS AND DEFENDANTS can be victorious on substantive legal grounds. All too often, however, it seems as if litigants lose by failing to comply with the rules of litigation. Recent decisions by the Appellate Division, Second Department, illustrate how parties who fail to properly prosecute their cases or comply with discovery requests, or who simply default, can doom themselves. Some of these decisions also demonstrate the lengths to which the court system will go in an effort to avoid having a dispute resolved on non-substantive grounds.
For example, in a breach of contract case,[1]� the plaintiff appealed from a judgment of Suffolk County Supreme Court Justice Alan D. Oshrin granting the defendant’s motion to dismiss the complaint pursuant to CPLR 3216 for want of prosecution. The Appellate Division observed that the defendant had sent the plaintiff a 90-day notice requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand. The plaintiff, however, had failed to comply, seek an extension of time pursuant to CPLR 2004, or demonstrate a reasonable excuse and a meritorious cause of action. Accordingly, the Appellate Division affirmed Justice Oshrin’s decision.
