Atito v. Yorke
- Vyskocil
- 1:21-cv-08448
- U.S. District Court · Southern District of New York
- 5
In Atito v. Yorke, Judge Vyskocil denied Atito’s request to vacate the dismissal because delayed action caused by attorney error was not excusable neglect.
Patience Atito’s request to reopen the dismissed action was denied, while Khaleel Yorke and A&Y Group, Inc. successfully opposed reopening. The underlying action was not reopened.
What happened
In Atito v. Yorke, Patience Atito’s case was removed from New York state court to federal court. After Atito did not appear or pursue the case, the court dismissed it for failure to prosecute and allowed an application to restore it by January 16, 2022.
Atito’s lawyer appeared shortly after the dismissal, but Atito did not timely ask to restore the case. Months later, Atito moved to vacate the dismissal, arguing that an associate had incorrectly told Atito that the restoration motion had been filed on time. The defendants opposed reopening the case.
Judge Mary Kay Vyskocil denied the motion. She found that the delay would cause little prejudice, but concluded that the reason for the delay was the most important factor and that attorney error did not amount to excusable neglect under the circumstances.
The detailed version
- Atito v. Yorke · No. 1:21-cv-08448
- Vyskocil
- May 24, 2022
Background
Patience Atito began the action in the Supreme Court of the State of New York, County of Bronx, on July 15, 2021. Khaleel Yorke and A&Y Group, Inc. removed the case to federal court in October 2021 based on diversity jurisdiction. After Atito did not appear or otherwise prosecute the case, the court ordered the defendants to serve the notice of removal on Atito.
The court then dismissed the action for failure to prosecute, without costs to any party and without prejudice to restoring the action to the court’s calendar if an application was made by January 16, 2022. The order warned that the dismissal would be with prejudice if no timely application was made. A footnote explained that the order had mistakenly listed the deadline as January 16, 2021, but that the parties should have understood the correct deadline to be January 16, 2022.
Atito’s lawyer entered an appearance about a week after the dismissal order. Atito nevertheless did not timely move to restore the action. On April 12, 2022, nearly four months after the dismissal, Atito moved to vacate the dismissal. The defendants opposed the motion.
Legal standard
The court considered the motion under Federal Rule of Civil Procedure 60(b)(1), which allows a court to grant relief from an order for mistake, inadvertence, surprise, or excusable neglect. Courts evaluate four factors: the danger of prejudice to the opposing party, the length and effect of the delay, the reason for the delay and whether it was within the moving party’s control, and whether the moving party acted in good faith.
The court explained that relief under Rule 60(b) is extraordinary. It also stated that the reason for the delay is the most important factor and that courts generally are reluctant to grant relief based on attorney error when a party had notice of the relevant order and an opportunity to respond.
Court’s analysis
The court found that the first two factors favored Atito. Reopening the case would cause minimal prejudice to the defendants because they had not yet filed an answer, and it would delay discovery by a few months. The defendants also had not shown that evidence had been destroyed or that discovery would become significantly more difficult because of the delay.
The court nevertheless found that the reason for the delay weighed against relief. Atito had received notice of the court’s order stating that Atito had failed to appear. Atito’s counsel entered an appearance soon afterward, giving Atito several weeks to file a motion to restore the case. Atito then waited several months and filed the motion after the deadline had passed.
Atito argued that the delay resulted from being misled by an associate who said that the restoration motion had been timely filed. The court concluded that this attorney error did not entitle Atito to relief because Atito had sufficient notice of the dismissal and an opportunity to respond.
Disposition
The court denied Atito’s motion to vacate the dismissal and requested that the clerk terminate docket entry 8. The opinion does not state a separate new disposition of the underlying action beyond denying the motion.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.