| Kahgan v Alwi |
| 2009 NY Slip Op 08183 [67 AD3d 742] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Rhonda Kahgan, Appellant, v Farooqi Alwi et al.,Respondents. (And a Third-Party Action.) |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondent Farooqi Alwi. Robert P. Tusa, Garden City, N.Y. (Donald W. Sweeney of counsel), for respondents OritSperber and Julian Sperber.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Dollard, J.), dated May 13, 2008, which denied her motionpursuant to CPLR 3404 to restore the action to the trial calendar.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with one billof costs payable by the respondents appearing separately and filing separate briefs, and themotion to restore the action to the trial calendar is granted.
The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case wasmarked off the trial calendar, at the plaintiff's request, after the defendants moved for summaryjudgment. Prior to the expiration of one year after the action was marked off the calendar, theplaintiff 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[*2]calendar. In January 2008 the plaintiff again moved for anorder "restoring this matter to active status for determination on the merits." This motion wasdenied by the Supreme Court, and we reverse.
CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar andnot restored within one year has been abandoned (see Sanchez v Denkberg, 284 AD2d446 [2001]). The court retains discretion to grant a motion to restore a case to the trial calendarafter the one-year period has expired (see Ford v Empire Med. Group, 123 AD2d 820[1986]). Here, it is undisputed that the plaintiff initially moved to restore the matter to the trialcalendar within one year after it was marked off and that, for reasons which are not discernibleon the record, the court never addressed that motion. Moreover, the record reveals that there wascontinued activity on the case just before the second motion to restore was made. Although theplaintiff could have more promptly moved a second time to restore the case to the calendar,under all of the circumstances, we conclude that there was a reasonable excuse for the delay inprosecution and a lack of intent to abandon the action (see Drucker v Progressive Enters.,172 AD2d 481 [1991]). Furthermore, the plaintiff has demonstrated a meritorious cause ofaction and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidentlyexercised its discretion in refusing to restore the matter to the trial calendar (see Sheridan v Mid-Island Hosp., Inc.,9 AD3d 490 [2004]; Acciarito v Homedco, Inc., 237 AD2d 236 [1997]). Skelos,J.P., Covello, Santucci, Chambers and Austin, JJ., concur.