Friday, January 7, 2011

Court of Appeals Watch

The follwing cases were granted leave to appeal to the Court of Appeals by the First Department:

Suppiah v. Kalish: involves a claim of legal malpractice against an immigration attorney. The plaintiff claimed his attorney committed malpractice by seeking to renew rather than extend his status under a nonimmigrant temporary working visa.

Umeze v. Fidelis Care New York: after the pro se plaintiff failed to respond to the defendants' CPLR 3216 90-day demand to resume prosecution, the defendants moved to dismiss the complaint.  The trial court granted the motion, but only to the extent of directing the plaintiff to resume prosecution within 10 days of service of the order with Notice of Entry.  The defendants appealed based on the failure to grant an unconditional order of dismissal and the First Department affirmed in a 3-2 decision.   

The majority held that the plaintiff's attempts to obtain counsel twice during the 90-day period demonstrated that there was no intent to adandon.  Furthermore, they held that the plaintiff's verified complaint constituted a sufficient showing of merit.

The dissent (Justices Catterson and Gonzalez) argued that the plaintiff's attempts to find an attorney during the 90-day period did not provide a reasonable excuse and did not explain the plaintiff's prior 5-year delay in prosecuting the action.  Furthermore, they argued that while a verified complaint may, on occassion, serve as a sufficient affidavit of merit, this was not one of those cases.  They also did not find the plaintiff's pro se status as an excuse for the delay.   

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