In Salatino v Pompa the Appellate Division addressed what is becoming increasing more prevalent in New York courts: a plaintiff drags out their case, allows it to be marked off calendar (often to avoid Standards and Goals issues), and later resurrects the action. This case involved a medical malpractice claim based upon treatment rendered more than a decade earlier. After filing suit in Richmond County Supreme Court, the plaintiff neglected to prosecute her action resulting in the Court marking the case off the calendar in May of 2012.

Two years after the plaintiff’s case was marked off the calendar, the defendant filed a motion to dismiss the case as abandoned. The plaintiff opposed the defendant’s motion asserting the cause for delay was the plaintiff’s extreme illness. The Supreme Court denied the defendant’s motion and allowed the case to proceed.

On appeal, the Appellate Division provided a refresher on the standard to defeat a motion to dismiss for failure to prosecute. The Court held that the plaintiff was required to demonstrate: 1) a potentially meritorious cause of action, 2) a reasonable excuse for the delay in prosecuting the action, 3) a lack of intent to abandon the action, and 4) a lack of prejudice to the defendant.

After reviewing the record, the Appellate Division found the plaintiff did not meet the requirements. Specifically, the Court noted that the plaintiff did not submit an expert affidavit addressing a meritorious cause of action, the claim of extreme illness as a basis for reasonable excuse for the delay was not supported by any medical evidence, and the plaintiff also did not demonstrate that the defendant would not be prejudiced from the excess delay in the plaintiff prosecuting the case.  It thus reversed the trial court and dismissed the case.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.