Martinez v. Belanger

186 A.D.2d 40, 587 N.Y.S.2d 642, 1992 N.Y. App. Div. LEXIS 10582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1992
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Hansel McGee, J.), entered on or about March 19, 1991, which granted defendant’s motion pursuant to CPLR 3216 to dismiss the action for failure to prosecute, affirmed, without costs.

The record shows numerous instances of depositions adjourned at plaintiffs’ request over a four-year period leading up to defendants’ service of a 90-day demand. After the demand was served, plaintiffs responded to several outstanding discovery requests, but did not file a note of issue or take any other steps to place the action on the calendar. While it is true, as plaintiffs argue, that CPLR 2005 gives the trial courts discretion to excuse delay or default resulting from law office failure, and that it was therefore error for the IAS Court to grant the motion to dismiss on the ground that "[a]nything that consists of law office failure is an insufficient excuse as a matter of law” (citing Barasch v Micucci, 49 NY2d 594), it is also true that law office failure will not be automatically accepted as an excuse in every case and that CPLR 2005 was never intended to routinely excuse defaults or to foster a return to the pre-Barasch era of noncompliance with time requirements (see, De Vito v Marine Midland Bank, 100 AD2d 530, 531). We reject law office failure as a justifiable excuse in this case, in view of the main plaintiff’s removal of himself from the court’s jurisdiction and failure to maintain adequate communication with his own counsel. Further, not even law office failure is offered as an excuse for the failure of plaintiffs’ counsel to take any steps to place the action on the calendar after the 90-day demand had been served. Concur—Murphy, P. J., Sullivan and Rosenberger, JJ.