Post-notice of trial limboJanuary 20, 2011
“Jack be nimble Jack be quick, jack go under limbo stick”. “Limbo Rock Jive” by Brave Combo.
What happens when a case is marked off the calendar in one of the lower courts in the Second Department, more than one year elapses and Plaintiff cannot make the required showing to restore the matter to the calendar? Good question.
Ferguson v Port Auth. of N.Y. & N.J., 2011 NY Slip Op 50025(U)(App. Term 2d Dept. 2011)
While it was improper for the Civil Court to dismiss the action for neglect to prosecute pursuant to CPLR 3404 (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 ), as plaintiff did not move to restore the matter within one year after it was stricken from the trial calendar (see Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 [c]), he was required to show, among other things, a reasonable excuse for the delay (see LoFredo v CMC Occupational Health Servs., 189 Misc2d 781 ; Lang v Wall Street Mortgage Bankers, Ltd., NYLJ, June 10, 1999 [App Term, 2d & 11th Jud Dists]). Since the Civil Court properly found that plaintiff had failed to offer a reasonable excuse for the three-year delay in seeking to restore the action to the calendar