Small v Metropolitan Prop. & Cas. Ins. Co. (2012 NY Slip Op 50760(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), dated July 19, 2010. The order granted plaintiff’s motion to restore the case to the trial calendar and denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion to restore the case to the trial calendar is denied; as so modified, the order is affirmed, without costs.

Plaintiff commenced this breach of contract action in 1998 to recover no-fault benefits for medical treatments she had received from healthcare providers for injuries she had sustained as a result of a motor vehicle accident. In July 1999, plaintiff withdrew her notice of inquest, and the case was apparently marked off the calendar. The parties then proceeded with discovery through May 2001. In April 2010, defendant served plaintiff with a 90-day notice. Plaintiff then attempted, within the 90-day period, to file a notice of trial. A clerk in the Civil Court rejected the filing and instructed plaintiff to move to restore the case to the calendar, which plaintiff did by notice of motion returnable in June 2010. Defendant cross-moved to dismiss the complaint pursuant to CPLR 3404. Thereafter, by order dated July 19, 2010, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

On appeal, defendant contends that plaintiff’s motion to restore the case to the calendar should have been denied and its cross motion to dismiss the complaint granted. An action that has been marked off the calendar, and which is not restored to the calendar within one year, may be restored only if the plaintiff demonstrates, among other things, a meritorious cause of action and a reasonable excuse for the delay in moving to restore (see e.g. Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 25 Misc 3d 130[A], 2009 NY Slip Op 52114[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), which plaintiff failed to do. Consequently, plaintiff’s motion should have been denied.

Defendant’s cross motion to dismiss the complaint invoked CPLR 3404. However, as CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), the Civil Court properly denied defendant’s CPLR 3404 cross motion to dismiss. We note that were the cross motion to be deemed as having been brought pursuant to CPLR 3216 seeking to dismiss for want of prosecution, it would have been premature [*2]since it was made prior to the expiration of the 90-day period. Thus, defendant’s cross motion was properly denied.

Accordingly, the order is modified by providing that plaintiff’s motion to restore the case to the trial calendar is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 2012