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Stricken v. dismissedMay 29, 2009

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 29226 (App. Term 2d Dept. 2009)

I am not sure why this case did not receive a (u) or Misc.3d(A) citation, but I take it the Appellate Term is trying to remind people what the difference is between an action that is sticken from the calendar verses an action that is dismissed due to a party’s non-appearance. If a non-superior court case is stricken, you have one year to restore it. Restoration needs to be made by motion (or so-ordered stipulation) and a reasonable excuse needs to be set forth as to why the matter was stricken. Compare, CPLR 3404 (Superior court actions can be revived as a matter of right within one year from the Note of Issue being stricken). After one year, you need to satisfy the four factors that defendant and the Civil Court argued needed to be satisfied. Contrariwise, if a case is dismissed, then the traditional 5015 factors need to be proved in order to revive the case.

Strategically, a no-fault plaintiff many times would prefer to have a case dismissed for non-appearance provided the six year SOL has not expired, than have it marked off the calendar. A dismissed case can be refiled, as long as it is without prejudice which is usually the case in the Civil Courts. A case marked off the calendar is not dismissed. And, in the Second Department, it probably can never be dismissed since 3404 does not apply.

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