In Kings County, cases are often procedurally dismissed for failing to file a note of issue. However, this dismissal is not on the merits. To vacate the dismissal, a plaintiff simply files a motion to restore. Not only are these motions routinely granted, but as the case of Degtiarev v Delecia-Kenny demonstrates, a defendant should use caution when opposing the motion.
In Degtiarev, the defendant’s firm opposed a motion by the plaintiff to restore the action to active pre-note-of-issue status. However, the trial court found that opposition was without merit and was filed simply to delay restoration of the action. The court then awarded the plaintiff an attorney’s fee as a sanction pursuant to 22 NYCRR 130-1.1.The Appellate Division affirmed the holding, stating that defendant’s opposition arguments “were completely without merit in law, failed to address the applicable statutory and case law, and appear to have been advanced, once their lack of merit was apparent, for the purpose of delaying restoration of the action.”
In King’s County, there is a strong preference to decide cases on the merits. Thus, a defendant should not simply oppose motions to restore without an independent basis to dismiss the action (i.e., neglect to prosecute). In other words, a defendant should look for grounds to dismiss the action on the merits. At a minimum, a defendant should not oppose the restoration, but should file a motion to compel outstanding discovery from the plaintiff.
Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at firstname.lastname@example.org