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Motion to renew and then someApril 25, 2012

DeMarquez v Gallo, 2012 NY Slip Op 03130 (2d Dept. 2012)

How many times have you seen this?

“[p]laintiffs’ motion to restore the action to the trial calendar is granted, and the action is restored to the trial calendar for an immediate trial without any further motion practice related to the restoration of the action.”

1) “After the plaintiff filed a note of issue, on May 15, 2001, the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Court directed the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325(d). Due to a clerical error, the case was inadvertently marked off the trial calendar rather than transferred to the Civil Court.”

2) “Upon discovering this clerical error, the plaintiff moved to restore the case to the trial calendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiff appealed and, by decision and order dated May 23, 2006, this Court reversed the order dated August 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar (see DeMarquez v Gallo, 29 AD3d 853).”

3) “Subsequent to this Court’s decision and order dated May 23, 2006, restoring the action to the trial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that she had to move again to restore the action. As a result, the plaintiff made a subsequent motion to restore the action, relying upon this Court’s decision and order dated May 23, 2006. The Supreme Court denied the plaintiff’s motion in an order dated August 4, 2009. [*2]

After first moving unsuccessfully to reargue the motion to restore, the plaintiff moved for leave to renew her motion to restore the action to the trial calendar. In the order appealed from, the Supreme Court denied the plaintiff’s motion for leave to renew. The plaintiff appeals and we reverse.

[discussion of leave to renew]

This one amazed me when I read it.  Does anyone on “motion day” in Supreme Kings spend the time to read the motion papers?  Or, is it more important to shoot our SFO’s after “oral argument” and “due deliberation”?  Just a thought,

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