L. Iantosca

The defendants brought a motion to vacate a certificate of pending litigation (CPL) registered against their property, arguing the plaintiff failed to prosecute the action with reasonable diligence.

The underlying action involved a claim of fraudulent conveyance to avoid a foreign judgment.

The court dismissed the motion, finding that the plaintiff had satisfactorily explained any litigation delay, had set the action down for trial, and that discharging the CPL would severely prejudice the plaintiff while the defendants showed no evidence of prejudice.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay.

The underlying action sought to enforce a default judgment obtained in Ohio and to declare a property transfer void as a fraudulent conveyance.

Applying the contextual approach, the court found that the plaintiff had satisfactorily explained the litigation delay, demonstrated an intention to prosecute the action, and rebutted the presumption of prejudice to the defendants.

Although the court could not determine exactly when the plaintiff learned of the dismissal order, it concluded that setting aside the dismissal was in the interests of justice.

The motion was granted, and the plaintiff was ordered to pay $10,000 in costs to the defendants in the cause.