Post-notice of trial limbo

“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 [2007]), 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 [2001]; 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

CPLR 3404 and the untimely motion to restore that was (in effect) deemed timely

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).

Stricken v. dismissed

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 29226 (App. Term 2d Dept. 2009)

I am not sure why this case did not receive a (u) or Misc.3d(A) citation, but I take it the Appellate Term is trying to remind people what the difference is between an action that is sticken from the calendar verses an action that is dismissed due to a party’s non-appearance. If a non-superior court case is stricken, you have one year to restore it. Restoration needs to be made by motion (or so-ordered stipulation) and a reasonable excuse needs to be set forth as to why the matter was stricken. Compare, CPLR 3404 (Superior court actions can be revived as a matter of right within one year from the Note of Issue being stricken). After one year, you need to satisfy the four factors that defendant and the Civil Court argued needed to be satisfied. Contrariwise, if a case is dismissed, then the traditional 5015 factors need to be proved in order to revive the case.

Strategically, a no-fault plaintiff many times would prefer to have a case dismissed for non-appearance provided the six year SOL has not expired, than have it marked off the calendar. A dismissed case can be refiled, as long as it is without prejudice which is usually the case in the Civil Courts. A case marked off the calendar is not dismissed. And, in the Second Department, it probably can never be dismissed since 3404 does not apply.

A plain disaster

A.M. Med. Servs., P.C. v GEICO Ins. Co.
2009 NY Slip Op 51029(U)(App. Term 2d Dept. 2009)

Simply put, you have to read this case. It looks to be a real disaster. Three points of law seem to come from this case.

First, if you have an order that conditionally dismisses or precludes a party should an EBT not be performed on or before a certain date, the party wishing to give effect to that order needs to follow the Appellate Term’s Fogel decision. Yes Fogel.

The Appellate Term has previously applied Fogel, in a 5102(d) action, when it denied an EBT dismissal motion on the basis that the Defendant failed to offer evidence from someone with personal knowledge that EBT was attempted to be scheduled and did not occur. It is the same principle here or even in EUO cases. You need to obtain an affidavit from someone with personal knowledge that the EUO did not occur. This could be from a calendar clerk or attorney, provided the right foundation is laid in the affidavit or affirmation. That was probably missing in this case.

Second, late papers will be accepted provided there is no prejudice. The effect of this is self explanatory.

Third, Golia’s dissent is priceless and explains why we now have a different crop of attorneys (on both sides) fighting the appellate wars. I will leave it at that.