October 13, 2009

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 52114(U))

Headnote

The court considered an action by a provider to recover assigned first-party no-fault benefits, wherein the parties had consented to have the case marked off the trial calendar in March 2007. In August 2008, the plaintiff moved to restore the case, but the Civil Court denied plaintiff's motion "with leave to renew upon a proper showing/reasonable excuse as to why plaintiff did not move to restore within one year of the case being marked off the trial calendar." The main issue decided was whether an action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case. The holding of the case was that the plaintiff failed to satisfy the requirements for restoration, and therefore, the order denying the motion to restore the case to the trial calendar was affirmed.

Reported in New York Official Reports at Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 52114(U))

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 52114(U)) [*1]

Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co.

2009 NY Slip Op 52114(U) [25 Misc 3d 130(A)]

Decided on October 13, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1624 Q C.

Vitality Chiropractic, P.C. a/a/o VALENTINA LEVCHENKO, Appellant,
against
State Farm Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 13, 2008. The order denied plaintiff’s motion to restore the case to the trial calendar.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties consented to have the case marked off the trial calendar in March 2007. In August 2008, plaintiff moved to restore the case. The Civil Court denied plaintiff’s motion “with leave to renew upon a proper showing/reasonable excuse as to why plaintiff did not move to restore within one year of the case being marked off the trial calendar.” The instant appeal by plaintiff ensued.

An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see Kaufman v Bauer, 8 Misc 3d 60 [App Term, 1st Dept 2005], revd on other grounds 36 AD3d 481 [2007]; see generally Uniform Rules for Trial Courts [22 NYCRR] § 208.14 [c]; Goldstein v Block, 7 AD3d 669 [2004]). Herein, plaintiff failed to satisfy the foregoing requirements. Accordingly, the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009