July 8, 2016

Queens Med. Supply, Inc. v Travelers Indem. Co. (2016 NY Slip Op 51080(U))

Headnote

A provider seeking restoration more than a year after its action was marked off must show merit and a reasonable excuse for delay. The provider moved to restore its assigned no-fault action to the trial calendar more than three years after it had been marked off. The Civil Court denied restoration because the motion was not filed within the statutory period. Applying 22 NYCRR 208.14 (c) and Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., the Appellate Term, Second Department, explained that later restoration remained available upon the required showing. The provider failed to satisfy those requirements, and the order denying restoration was affirmed.

Reported in New York Official Reports at Queens Med. Supply, Inc. v Travelers Indem. Co. (2016 NY Slip Op 51080(U))

[*1]
Queens Med. Supply, Inc. v Travelers Indem. Co.
2016 NY Slip Op 51080(U) [52 Misc 3d 138(A)]
Decided on July 8, 2016
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : SOLOMON, J.P., ALIOTTA and ELLIOT, JJ.
2015-418 K C

Queens Medical Supply, Inc., as Assignee of KEVIN TARPEH and ASHMAR ROSE, Appellant,

against

Travelers Indemnity Co., Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order denied plaintiff’s motion to restore the case to the trial calendar.

ORDERED that the order is affirmed, with $25 costs.

This action by a provider to recover assigned first-party no-fault benefits was marked off the trial calendar on October 19, 2010. By notice of motion returnable January 6, 2014, plaintiff moved to restore the case. Plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion on the ground that plaintiff had failed to file the motion “within the statutory period pursuant to the CPLR.”

An action that has been marked off the trial calendar, which is not restored to the calendar within one year, may be restored thereafter, but only if the plaintiff demonstrates, among other things, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 25 Misc 3d 130[A], 2009 NY Slip Op 52114[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see generally Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]; Goldstein v Block, 7 AD3d 669 [2004]). Here, plaintiff failed to satisfy the foregoing requirements.

Accordingly, the order is affirmed.

Solomon, J.P., Aliotta and Elliot, JJ., concur.


Decision Date: July 08, 2016

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