CPLR 3404 does not applyMarch 21, 2016

Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 2016 NY Slip Op 50255(U)(App. Term 2d Dept. 2016)

“Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), when an action has been stricken from the calendar and a party moves within a year to restore the action to the calendar, that motion “must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.” Here, plaintiff’s counsel’s bare assertion, that the action had been stricken because plaintiff’s witness had been “unavailable,” was conclusory, since it failed to provide any indication as to who the witness was or any reason as to why the witness was unavailable. As plaintiff failed to proffer a satisfactory explanation for the action having been stricken from the calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]), plaintiff’s motion was properly denied.”

Under CPLR 3404, this would have been a no brainer.  Yet, under the uniform rule, a showing of reasonable excuse is necessary.  And that, was not done in this case.

Leave a Reply