Did you ever wonder what happens if your negligence case is called for trial in New York and you're not ready to proceed?


Depending on the age of your case - and the particular court you are in - one of several things can happen. If your case is in a venue that has a heavy backlog of cases, and this is the first time that your case has appeared on the court's trial calendar, it is highly likely that the trial of your negligence case will put over, or "adjourned," to a later date. But if your case is older (i.e., was started earlier and therefore has an older index number), you are running the risk that the court may dismiss your case.


To that end, under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Fink v. Antell, 19 AD3d 215; Johnson v. Brooklyn Hosp. Ctr., 295 AD2d 567, 569; Farley v. Danaher Corp., 295 AD2d 559, 560).


So what can you do if the Court dismisses your case based upon your inability to proceed to trial. In that event, all hope is not (necessarily) lost.


In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see e.g. Felsen v. Stop & Shop Supermarket Co., LLC, 83 AD3d 656) The reason behind this is grounded in public policy considerations, which strongly favors resolving cases on the merits (see Nickell v. Pathmark Stores, Inc., 44 AD3d 631, 632; M.S. Hi-Tech, Inc. v. Thompson, 23 AD3d 442, 443). As New York's courts have stated, "[T]he plaintiff should not be deprived of her day in court because of some difficulty in rescheduling a trial date that was convenient for all the parties." See, Burgess v. Brooklyn Jewish Hosp., 272 AD2d 285. 


One such viable excuse would be a scheduling conflict, such as where the law firm is a small one, and there is another trial that is scheduled for the same time, or with the likelihood that they will overlap. This type of excuse is acknowledged by 22 NYCRR 125.1.


A word of caution is in order, however: A review of decisions and orders regarding trial adjournments is measured by an improvident exercise of discretion standard (see Matter of Duane S., Jr. [Duane S.], 88 AD3d 727, 728; Diamond v. Diamante, 57 AD3d 826, 827; Atwater v. Mace, 39 AD3d 573, 574; Matter of Kagno, v. Kagno, 296 AD2d 410, 410-411). In other words, if the trial court decides to dismiss your case, you have a heightened standard that must be satisfied before your case will be restored.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer