Marking a Case Off-Calendar is Not as Dangerous as It Used to Be
In Housing Court cases are supposed to be resolved quickly – this is why they are called summary proceedings. Performing discovery is uncommon in summary proceedings but will happen in the context of certain more complicated cases in which one party needs information that is in the exclusive use and control of the adverse party. Theoretically each time a case is on the calendar in Housing Court it is on for trial. So, when parties to a summary proceeding are engaged in discovery the case will often be marked off calendar pending the completion of that discovery. This is where things can get dicey for a landlord.
Discovery Can Take More Than One Year to Complete
It is the law in New York State that when a case is marked off calendar for more than 1 year that the case is dismissed for failing to prosecute. A case generally is not off calendar when discovery is being conducted in state court. Rather, a case will generally be marked off calendar in state court only after a party has defaulted in making an appearance. In Housing Court though, judges are reluctant to adjourn a case every few weeks while discovery is being conducted and so the case gets marked off calendar.
Discovery can often take more than 1 year for a variety of reasons:
laziness of the landlord’s attorney,
recalcitrance on the part of the tenant,
or even because of the sheer volume of what must be produced.
In Housing Court a landlord who allowed a case to be marked off calendar, actively engaged in discovery and/or settlement negotiations, and then failed to restore the proceeding to the calendar within 1 year faced dismissal because the case had run afoul of the rule that a case marked off calendar for 1 year was to be dismissed.
Marking a Case Off-Calendar is Not as Dangerous as It Used to Be
This quirk in the law was corrected by a decision of the Appellate Term, First Department that was released on December 15, 2014 entitled, Sammy Group LLC v. Evans, 2014 NY Slip Op 51753(U) (1st Dept. App.Term).
In Sammy Group a landlord has started an illegal alterations holdover proceeding. The case was then marked off calendar pending the completion of discovery. Substantial discovery was then performed at the completion of which – 16 months after the case was marked off calendar – the landlord sought to restore the proceeding to the calendar for trial. The tenant opposed the application to restore the proceeding claiming that the fact that the case was off-calendar for 12 months precluded restoration. Housing Court Judge Kaplan granted the motion to restore and the tenant appealed. The Appellate Term affirmed Judge Kaplan and held that his decision to restore the proceeding was correct by writing:
“The petition-landlord’s restoral motion, made roughly 16 months later, after the parties had engaged in considerable discovery, was properly granted in view of landlord’s showing of a potentially meritorious claim, the absence of any discernible prejudice to tenant, and the fact that the case was marked off calendar in open-ended fashion and through no fault of landlord.”
The impact of this decision is that landlords can breathe easier about marking a case off-calendar so long as the landlords are diligent about conducting discovery and continuing to have a meritorious claim upon the completion of the discovery.