The defendant insurance company brought a motion to dismiss the plaintiff's action for delay, arguing that the plaintiff's inordinate and inexcusable delay in advancing the litigation created a substantial risk that a fair trial would not be possible.
The plaintiff brought a cross-motion to restore the action to the trial list and to compel the defendant to attend examination for discovery.
The court found that while delay was inordinate, it was excusable because the defendant's former counsel was primarily responsible for the delay by failing to serve a sworn affidavit of documents despite three court orders.
The court found no non-compensable prejudice to the defendant and restored the action to the trial list.
The plaintiff's motion to compel discovery was dismissed to avoid further delay.
