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Dismissal for Want of Prosecution

Jul 4, 2005 - Recent Verdicts by Jason G. Wehrle

While the average lawsuit in New York State may take a year or two to resolve, often cases can take years to resolve through no fault of defense counsel but, rather, through the inactivity and neglect on the part of the plaintiff or plaintiff’s counsel.  In those instances, it is possible that the action can be dismissed based upon an application by defense counsel to dismiss the complaint due to plaintiff’s failure to prosecute the litigation.

Kathleen Hannan, Esq., of our New York City office, recently prevailed under just such a scenario.  In the matter of Williams v. Grand Manor Health Related Facility, Inc., d/b/a Grand Manor Nursing & Rehabilitation Ctr., the plaintiff decedent was a middle aged man with an extensive history of psychosis, seizure disorder, alcohol dependency and improper and aggressive anti-social behavior.  Mintzer Sarowitz Zeris Ledva & Meyers took over the defense of the case in September, 2008 from another firm when the case was over two years old.  While the lawsuit ostensibly arose out of a slip and fall incident that occurred on July 4, 2005 and was originally filed on behalf of William individually in 2006, the case had been dormant with no activity on the part of plaintiff when MSZL&M took over.  We recommended that the case continue to lay dormant rather than running up substantial legal fees, since it appeared to have been abandoned.  Eventually, in September of 2010 we recommended to the claims department that we close the file for inactivity, and did so in November of that year.

Court Grants MSZL&M’s Motion to Dismiss Based on Excessive Delay

Approximately four and one half years later, in July of 2015, our office received a Request for Judicial Intervention and a motion seeking to replace the administrator of the estate with Nadine Williams instead of the decedent Lawston Williams (who had died on December 25, 2013).  Ms. Nadine Williams had been appointed the administrator of the Williams estate in June of 2015.  In opposing the motion, Attorney Kathleen Hannan argued that the substantial delay in this litigation was prejudicial and that plaintiff’s counsel had failed to provide either a reason for the excessive delay in prosecuting this case or an affidavit of merit.  Ms. Hannan also filed a cross motion to dismiss the case with prejudice, citing the CPLR sections regarding the proper procedure to restore a case to activity and the Doctrine of Laches.

In a decision issued by New York State Supreme Court Justice Kenneth L. Thompson, Jr., the court denied the plaintiff’s motion and granted Ms. Hannan’s cross motion and dismissed the complaint with prejudice.  In the decision, the court noted that plaintiff failed to submit an affidavit of merit nor did the plaintiff provide a reasonable excuse for the delay in the lawsuit.

The moral of this story is that while the courts are often lenient and are willing to look the other way to the benefit of a plaintiff litigant, eventually the court’s patience will wear thin and dismissal of the lawsuit could be the end result.