3404 again

Turner v City of New York, 2017 NY Slip Op 01323 (1st Dept. 2017)
“The motion court erred in dismissing the negligence action pursuant to CPLR 3404. When the action was removed from the trial calendar, the court indicated that it should be continued as a pre-note of issue case. CPLR 3404 does not apply to cases in which no note of issue has been filed or the note of issue has been vacated”

The question on these cases always becomes why was the case removed from the calendar.  Was it removed due to discovery issues? (3404 does not apply).  Was it removed because the parties were not prepared for trial? (3404 applies).  Or was the case expressly deemed to be “pre-note” (3404 does not apply)

CPLR 3404 does not apply

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.

Marked off and cannot be dismissed on motion

Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co., 2014 NY Slip Op 50354(U)(App. Term 2d Dept. 2014)

CPLR 3404 does not apply to Civil Court and the Uniform Rule does not allow dismissal of marked off cases.  However, the case may never be revived.

“Contrary to defendant’s assertion, the Civil Court rule which governs actions stricken from the calendar (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14) has no provision for dismissing a complaint as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]).”

3404 and 3216 collide – well somewhat

“Plaintiff commenced this breach of contract action in 1998 to recover no-fault benefits for medical treatments she had received from healthcare providers for injuries she had sustained as a result of a motor vehicle accident. In July 1999, plaintiff withdrew her notice of inquest, and the case was apparently marked off the calendar. The parties then proceeded with discovery through May 2001. In April 2010, defendant served plaintiff with a 90-day notice. Plaintiff then attempted, within the 90-day period, to file a notice of trial.”

“Defendant’s cross motion to dismiss the complaint invoked CPLR 3404. However, as CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), the Civil Court properly denied defendant’s CPLR 3404 cross motion to dismiss. We note that were the cross motion to be deemed as having been brought pursuant to CPLR 3216 seeking to dismiss for want of prosecution, it would have been premature [*2]since it was made prior to the expiration of the 90-day period. Thus, defendant’s cross motion was properly denied.

Two things seem apparent here.

1) The Court seems to be saying that although CPLR 3404 does not apply, one could use the 3216 procedure and probably prevail since a Plaintiff would never be able to make a showing that there was a reasonable excuse for its failure to promptly restore.

2) How much is the interest on this case?  12 years of compounded 24% per annum interest?

A case and reserves that will remain in limbo

First Help Acupuncture, P.C. v General Assur. Co., 2012 NY Slip Op 50142(U)(App. Term 2d Dept. 2012)

“An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case”

Since the Appellate Division, Second Department has held that 3404 can never serve as a means to dismiss these cases, this matter like many will be held in limbo forever.  Thus, the reserves will also be remaining tied up forever.