4.33: Dismissal for long delay

Case Summary

This was an Application to dismiss two related proceedings pursuant to Rule 4.33 for long delay.

The underlying proceedings were an Action between a husband and wife for divorce and related relief, and a surrogate Action for maintenance and support, initiated by the wife against the husband’s estate following the husband’s passing. The Application to dismiss for long delay was brought by the deceased husband’s estate. The last non-controversial step to advance the divorce Action was the issuance of a divorce Judgment, filed August 15, 2016. The last non-controversial advancing step in the surrogate Action was a Chambers appearance on November 29, 2017, wherein hearing of the wife’s Application for maintenance and support was adjourned to Special Chambers. The Special Chambers hearing was later adjourned sine die by consent.

The Court noted several general principles applicable to Applications pursuant to Rule 4.33 and whether a step “significantly advances” the Action, so as to preclude Rule 4.33. The inquiry considers whether the purported advance moves the lawsuit and its resolution forward in an essential way, considering the step’s nature, value, importance and quality. The genuineness and the timing of the advance in the Action are also relevant, with a focus on substance and effect over form. In addition, the Court clarified that a step required by the Rules is not necessarily a significant step and that the Court does not have discretion to allow the Action to continue if the requirements of the Rule are met. The Plaintiff bears the ultimate responsibility of prosecuting its claim.

Turning to the arguments before it, the Court concluded that correspondence between counsel for the wife and previous counsel for the husband prior to his passing did not qualify as a standstill agreement for purposes of a Rule 4.33 and could not be relied upon, particularly in the absence of notice to counsel for the husband’s estate, following the husband’s passing. Further, the Court held that the wife’s Application to consolidate the two Actions, filed February 21, 2019, but later adjourned sine die by consent, did not represent a significant advance, since the Application was not ultimately prosecuted. On this point, the Court noted that, upon the husband’s estate filing its Application pursuant to Rule 4.33, the wife became unable to insist that the consolidation Application be heard in priority and the husband became entitled to refuse further participation in the Action, pending the Rule 4.33 Application. Other steps, including service of an Affidavit of Records, were not found to have significantly advanced the Action in the absence of argument that they had, since no presumption could be made as to their advancement of the Action.

Both Actions were struck pursuant to Rule 4.33.

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