Key Takeaway
CPLR 3404 case analysis: Kahgan v Alwi explores rebuttable presumption of abandonment when trial motions aren't calendared, with implications for Civil Court actions.
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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.
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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).
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Legal Update (February 2026): Since this 2009 post, CPLR 3404 provisions regarding restoration of cases to trial calendars may have been subject to amendments or clarifying court rules, particularly regarding timing requirements and procedural standards for deemed abandonment. Additionally, appellate decisions since 2009 may have further refined the application of the rebuttable presumption doctrine discussed in Kahgan v Alwi. Practitioners should verify current CPLR 3404 provisions and recent case law interpretations when advising on calendar restoration matters.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
188 published articles in Procedural Issues
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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