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CPLR 3404 and the untimely motion to restore that was (in effect) deemed timelyNovember 12, 2009

CPLR 3404 was recently discussed in Kahgan v Alwi, 2009 NY Slip Op 08183 (2 Dept. 2009), as demonstrated below:

“The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005, the case was marked off the trial calendar, at the plaintiff’s request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff moved, in or about July 2006, to restore the action to the trial calendar. However, although the notice of motion indicated a return date, this motion never appeared on any court calendar.”

“CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned…. Here, it is undisputed that the plaintiff initially moved to restore the matter to the trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion….”

I like the line in this case where the Appellate Division says that CPLR 3404 creates a rebuttable presumption that an action that lay dormant for more than a year after it is marked off is deemed abandoned.  I always thought that CPLR 3404 was straight forward on its face.  Also, it is important to observe that the filing of a motion that does not make the court’s calendar will serve as a valid excuse to defeat the rebuttable presumption of abandonment that CPLR 3404 sets forth.  I have seen this before in a line of cases allowing untimely summary judgment motions to be adjudicated on their merits, when a prior motion for summary judgment never made the court’s calendar.

There is another question that needs to be answered.  Does CPLR 3404 apply in Civil Court actions?  Compare, Kaufman v. Bauer, 36 AD3d 481 (1st Dept. 2007)(holding that CPLR 3404 applies in Civil Court actions), with, Chavez v. 407 Seventh Ave. Corp., 39 AD3d 454 (2d Dept. 2007)(holding that CPLR 3404 does not apply in Civil Court actions).

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