Category: CPLR R. 3404

CPLR R. 3404 Dismissal of abandoned cases

Pucar v L.H. Charney Assoc., LLC, 2010 NY Slip Op 09489 (App. Div., 2nd 2010)

When the note of issue has been vacated, the case reverts to its pre-note of issue status, and CPLR 3404 is not applicable (see Lane v New York City Hous. Auth., 62 AD3d 961; Andre v Bonetto Realty Corp., 32 AD3d 973, 974-975; Reitman v St. Francis Hosp., 2 AD3d 429, 430; Carte v Segall, 134 AD2d 396, 397). Accordingly, that branch of the plaintiffs' motion which was, in effect, to restore the action to active status should have been granted (see Lane v New York City Hous. Auth., 62 AD3d at 962; Hemberger v Jamaica Hosp., 306 AD2d 244; Badillo v Sheepshead Rest. Assoc., 296 AD2d 514, 515).

Mitskevitch v City of New York, 2010 NY Slip Op 08910 (App. Div., 2nd 2010)

The Supreme Court properly granted the plaintiff's motion to restore this action to the calendar. CPLR 3404 does not apply to this pre-note of issue case (see Dergousova v Long, 37 AD3d 645; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412; Lopez v Imperial Delivery Serv., 282 AD2d 190). Furthermore, there was no 90-day notice pursuant to CPLR 3216, nor was there an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510; Burdick v Marcus, 17 AD3d 388; 123X Corp. v McKenzie, 7 AD3d 769). Moreover, contrary to the appellant's contention, this action could not have properly been dismissed pursuant to CPLR 3126 based upon the plaintiff's failure to comply with court-ordered discovery, since there was no motion requesting this relief and the plaintiff was not afforded an opportunity to be heard on this issue (see CPLR 3124; 3126; Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849; Postel v New York Univ. Hosp., 262 AD2d 40, 42). 

Nasuro v PI Assoc., LLC, 2010 NY Slip Op 08717 (App. Div., 2nd 2010)

The action, however, was also marked off the trial calendar during court proceedings on November 13, 2006. Although the note of issue, which had been previously filed, was not vacated at that time, where, as here, an action has been marked off the trial calendar, and more than one year has passed without restoration of the action to the trial calendar, the action shall be deemed abandoned and shall be dismissed (seeCPLR 3404). A party seeking to vacate such a dismissal and restore such an action to the trial calendar must demonstrate four things: (1) a meritorious cause of action or defense, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412; Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490; Borrelli v Maye, 293 AD2d 506; Schwartz v [*2]Mandelbaum & Gluck, 266 AD2d 273). All four components must be satisfied before the dismissal can be properly vacated and the action restored to the trial calendar (see Morgano v Man-Dell Food Stores, 259 AD2d 679).

Here, Maric did not move to restore the action to active status and, thereafter, to the trial calendar until February 24, 2009, more than two years after the action was marked off the trial calendar (cf. Kohn v Citigroup, Inc., 29 AD3d 530, 531-532). In making its motion, Maric failed to satisfy any of the requirements set forth above. Maric did not submit an affidavit of merit, failed to provide a reasonable excuse for the delay in moving, failed to sufficiently demonstrate a lack of intent to abandon the action, and failed to demonstrate a lack of prejudice to the opposing parties. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of Maric's motion which was to restore the action to active status and, thereafter, to the trial calendar. 

Santana v Vargas, 2010 NY Slip Op 07160 (App. Div., 2nd 2010)

Contrary to the defendants' contention, the action was not marked "off" or stricken from the trial calendar within the meaning of CPLR 3404 (see Freehill v ITT Sheraton Corp., 74 AD3d 876; Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414). Rather, the Supreme Court's order dated June 1, 2007, indicates that the case was marked "settled" after the parties reached a tentative agreement. Accordingly, CPLR 3404 is inapplicable (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 413; Baez v Kayantas, 298 AD2d 416), and the plaintiff was not required to demonstrate a reasonable excuse, meritorious cause of action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the active trial calendar (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 41

The bold is mine.

CPLR R. 3404 Dismissal of abandoned cases

Matter of Cento Props. Co. v Assessor, 2010 NY Slip Op 02556 (App. Div., 2nd, 2010)

In the interim, in or around September 1999, Cento filed a note of issue with respect to the original proceeding. Subsequently, on September 25, 2001, the original proceeding appeared on the trial calendar. On that date, pursuant to certain procedures that former Justice Leo F. McGinity had implemented years earlier in an attempt to reduce the backlog of tax certiorari proceedings on the trial calendar, the original proceeding was removed from the trial calendar so the County could obtain a preliminary appraisal, after which the parties could try to settle the matter. Thereafter, the subsequent related proceedings were marked "inactive pre-note." [*2]

Ultimately, on or about November 21, 2007, with the parties unable to reach a settlement, Cento moved to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status. The County opposed restoration of both the original proceeding and the subsequent related proceedings. The Supreme Court denied the motion, after which Cento moved to reargue. Upon granting leave to reargue, the Supreme Court granted Cento's motion to restore, holding that (1) restoration of the original proceeding to the trial calendar is appropriate since Cento satisfied the four-prong test for restoring, to the trial calendar, a matter marked "off" the trial calendar pursuant to CPLR 3404 for more than one year, and (2) restoration of the subsequent related proceedings to active status is automatic because the County had failed to serve a 90-day notice pursuant to CPLR 3216. We affirm, but for different reasons.

A review of the information on the New York State Unified Court System E-Courts public website, of which we take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20), reveals that, when the original proceeding appeared on the trial calendar in 2001, the court marked the case "settled before trial." Accordingly, the original proceeding was not marked "off" or stricken from the calendar pursuant to CPLR 3404 (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414; Baez v Kayantas, 298 AD2d 416; Basetti v Nour, 287 AD2d 126). For the reasons set forth in our determination on a companion appeal (see Matter of Transtechnology Corp. v AssessorAD3d [decided herewith]), the Supreme Court correctly recognized that it misapprehended the law relevant to the instant dispute and, thus, correctly granted that branch of the petitioner's motion which was for leave to reargue and thereupon granted those branches of Cento's motion which were to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status.

And one older 3404 decision that I never got around to posting.

Kahgan v Alwi, 67 AD3d 742 (App. Div., 2nd, 2009)

The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case was marked off the trial calendar, at the plaintiff's request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff 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 calendar. In January 2008 the plaintiff again moved for an order "restoring this matter to active status for determination on the merits." This motion was denied by the Supreme Court, and we reverse.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned (see Sanchez v Denkberg, 284 AD2d 446 [2001]). The court retains discretion to grant a motion to restore a case to the trial calendar after 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 trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion. Moreover, the record reveals that there was continued activity on the case just before the second motion to restore was made. Although the plaintiff 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 in prosecution 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 of action and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidently exercised 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]).

CPLR R. 3404 Dismissal of abandoned cases

Bornstein v Clearview Props., Inc., 2009 NY Slip Op 09602 (App. Div., 2nd, 2009)

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419; Basetti v Nour, 287 AD2d 126, 131). The plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored (see M. Parisi & Son Constr. Co. Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419).

Here, the plaintiff failed to meet this burden. The unsubstantiated excuse proffered by a former attorney in counsel's law firm regarding health issues in his family and his own depression was insufficient to excuse the more than three-year delay in moving to restore the action after the plaintiff's prior motion to restore was denied, as there was no showing that these problems persisted throughout the period in question (see Bray v Thor Steel & Welding, 275 AD2d 912, 912-913; Knight v City of New York, 193 AD2d 720). Further, in light of the plaintiff's inactivity regarding the action during the delay in moving to restore the action to the calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Furniture Vil. v [*2]Schoenberger, 283 AD2d 607; Cruz v Volkswagen of Am., 277 AD2d 340, 341). Moreover, since more than nine years have passed between the time of the acts complained of and the date of the motion under review, the defendants would be prejudiced if the action was restored to the trial calendar (see Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871; Kalyuskin v Rudisel, 306 AD2d 246, 247). Accordingly, the plaintiff's renewed motion to vacate the dismissal of the action and to restore the action to the trial calendar should have been denied.

Fun fact: CPLR R. 3404 is not applicable to the Civil Court, at least in the Second Department.