Why Trust This Analysis
This article is part of our ongoing 3404 coverage, with 5 published articles analyzing 3404 issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
New York’s legal landscape includes different procedural rules depending on the court where a case is filed. While the Civil Practice Law and Rules (CPLR) governs most state court proceedings, New York City Civil Court operates under additional Uniform Rules that can impose stricter requirements. This distinction becomes particularly important when cases are stricken from the calendar and parties seek to restore them for trial.
The case of Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co. illustrates how these different procedural standards can significantly impact no-fault litigation outcomes. When a case is stricken from the calendar in NYC Civil Court, the burden on the moving party to restore it differs markedly from what might be required under standard CPLR provisions.
Jason Tenenbaum’s Analysis:
Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 2016 NY Slip Op 50255(U)(App. Term 2d Dept. 2016)
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“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 § 208.14 ), 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.
Key Takeaway
This case demonstrates the critical importance of understanding which procedural rules apply to your specific court. NYC Civil Court’s Uniform Rules require detailed, factual explanations when seeking to restore stricken cases—a much higher bar than CPLR 3404’s more lenient standards. Practitioners must provide specific details about witnesses and unavailability reasons, not mere conclusory statements.
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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.
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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.
If you need legal help with a 3404 matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
