22 NYCRR § 208.14(c); CPLR R. 3404; an interesting (but wrong) theory re: law of the case

Law of the case

22 NYCRR § 208.14 Calendar default; restoration; dismissal

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

CPLR R. 3404 Dismissal of abandoned cases

Bowman v Beach Concerts, Inc., 2009 NY Slip Op 07747 (App. Div., 1st, 2009)

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

Deltejo v St. Nicholas Venture Inc., 2009 NY Slip Op 07689 (App. Div., 1st, 2009)\

Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701[c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A & J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants' seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants' remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]).

.

CPLR 3404 and a Civil Court Distinction [22 NYCRR § 208.14 (b)]

CPLR R. 3404. Dismissal of abandoned cases

Casavecchia v Mizrahi, 2009 NY Slip Op 03858 (App. Div., 2nd, 2009)

The Supreme Court properly granted the plaintiff's motion to "restore"
this action to the active calendar after it had been marked "disposed,"
given that CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282
AD2d 190), there was no 90-day notice pursuant to CPLR 3216, and there
was no order dismissing the complaint pursuant to 22 NYCRR 202.27
(see Burdick v Marcus, 17 AD3d 388; 123X Corp. v McKenzie, 7 AD3d 769; Golan v Long Is. Jewish Med. Ctr., 7 AD3d 489, 490; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412).

Christiano v Solovieff Realty Co., L.L.C., 2009 NY Slip Op 03942 (App. Div., 1st, 2009)

Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic,
282 AD2d 366 [2001]). Their affidavit of merit was conclusory, they
offered no reasonable explanation for their failure to proceed with
discovery for nearly two years, they failed even to address the issue
of prejudice to defendants, and their lack of activity [*2]between
the time the case was struck from the calendar and their court-ordered
motion to restore fails to rebut the presumption of abandonment
.

22 NYCRR § 208.14 Calendar default; restoration; dismissal

b) At
any scheduled call of a calendar or at a pretrial conference, if all
parties do not appear and proceed or announce their readiness to
proceed immediately or subject to the engagement of counsel, the judge
presiding may note the default on the record and enter an order as
follows:

(1) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(2)
If the defendant appears but the plaintiff does not, the judge may
dismiss the action and may order a severance of counterclaims or
cross-claims.

(3) If no party appears, the judge may strike the action from the calendar or make such other order as appears just.

(c) Actions stricken from the calendar may be
restored to the calendar only upon stipulation of all parties so
ordered by the court or by motion on notice to all other parties, made
within one year after the action is stricken. A motion must be
supported by affidavit by a person having firsthand knowledge,
satisfactorily explaining the reasons for the action having been
stricken and showing that it is presently ready for trial.


V.S. Med. Servs., P.C. v Travelers Ins. Co.
, 2009 NY Slip Op 29226 (App. Term, 2nd)

On November 6, 2007, plaintiff moved to vacate the order of
dismissal and restore the matter to the trial calendar. Plaintiff's
counsel submitted an affidavit from counsel's employee, Polina
Shvartsberg, who stated that she is responsible for calendaring
counsel's trial dates and that she failed to do so in this matter.
Consequently, plaintiff's counsel was unprepared for trial.


The Civil Court denied plaintiff's motion, concluding that
plaintiff "has failed to show a reasonable excuse for its delay, as
well as a meritorious cause of action, lack of prejudice to the
defendant and a lack of intent to abandon this action." The court added
that plaintiff's motion was untimely, as the matter had been marked off
the calendar for more than a year.

Plaintiff now appeals, claiming that the Civil Court should
have granted its motion to vacate the default pursuant to CPLR 2005 and
CPLR 5015. We affirm.

Although both defendant and the Civil Court appear to rely on
Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (c)
to support the denial of plaintiff's motion, we conclude that this
provision is inapplicable under the circumstances of this case. Section
208.14 (c) governs restoration of cases within one year after the
action has been stricken from the calendar. Here, since the
case was never stricken from the trial calendar, but rather was
dismissed, section 208.14 (c) is inapplicable.

Although the Civil Court, in dismissing the case, did not
specifically note a default, it is clear from the record that the case
was dismissed on default
. Uniform Rules for the New York City Civil
Court (22 NYCRR) § 208.14 (b) provides, in relevant part, that

"[a]t any scheduled call of a calendar . . . if all parties do not
appear and proceed or announce their readiness to proceed immediately .
. . the judge presiding may note the default on the record and enter an
order as follows:

* * *

(2) If the defendant appears but the plaintiff does not, the judge may dismiss the action . . . ."

In this case, a card attached to the notice of trial clearly states
that the case was dismissed because plaintiff was not ready to proceed.
Indeed, plaintiff — both in the Civil Court and on appeal — refers to
the dismissal as being entered on default and maintains that its motion
to vacate the default should have been granted pursuant to CPLR 5015.
In these circumstances, it was incumbent upon plaintiff to demonstrate
a reasonable excuse for the default and a meritorious cause of action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain this burden.

The sole explanation offered by plaintiff for its default is
that plaintiff's counsel's office failed to calendar the trial date.
Such conclusory and factually devoid allegations are insufficient to
constitute a reasonable excuse
(see Juarbe v City of New York, 303 AD2d 462 [2003]). On this basis alone, plaintiff's motion was properly denied.

The bold is mine.