Senior Associates Justin Masure and Matthew Lavoie obtained a complete defense victory after the Appellate Division, Second Department, affirmed an order denying the plaintiff's motion to restore a dismissed action. The decision leaves intact the dismissal secured in Nassau County Supreme Court following plaintiff counsel's repeated failure to appear for court-ordered compliance conferences.
The plaintiff sought to restore the action by attributing the missed appearances to law office error. Counsel asserted that the case was misfiled under an incorrect index number and improperly calendared internally. The plaintiff also submitted an expert engineer's affidavit in an effort to establish a potentially meritorious cause of action.
Masure drafted the opposition to the motion to restore, identifying inconsistencies in counsel's explanation and deficiencies in the engineer's affidavit concerning his inspection of the accident site and resulting opinions. The trial court denied the motion, preserving the dismissal and establishing the foundation for the subsequent appellate victory.
"An application to restore a dismissed action requires a supported explanation for the default," said Justin. "Our opposition identified gaps and inconsistencies in the plaintiff's submissions that weighed against reopening the case."
Lavoie handled the appeal and successfully defended the trial court's ruling before the Second Department. In affirming, the appellate court concluded that the plaintiff failed to establish a reasonable excuse for the default. It found counsel's explanation conclusory, unsupported by documentary evidence, and insufficient to excuse the missed conferences. The court also found the law firm's appearance in the action following substitution undermined its explanation for the failure to appear.
Since the plaintiff failed to demonstrate a reasonable excuse, the Second Department did not reach the question of whether the underlying claim was potentially meritorious.
"The appellate decision preserves the dismissal obtained through Justin's work in the trial court," said Matthew. "We are pleased to have successfully defended that result and protected our client from the burden and expense of renewed litigation."
The positive outcome reflects effective coordination between trial and appellate counsel, from the original opposition through the successful defense of the order on appeal. The action remains dismissed, subject to any further appellate review.
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