Opinion
2014-936 K C
03-01-2016
Gaetane Physical Therapy, P.C., as Assignee of MANUEL DELVA, Appellant, v. Kemper Auto & Home Ins. Co., Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 27, 2013. The order denied plaintiff's motion to restore the action 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 April 3, 2013. On April 8, 2013, plaintiff moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In an affirmation in support of the motion, plaintiff's counsel stated that the case had been "marked off" when plaintiff's witness was "unavailable and unable to appear" for trial. Counsel further stated that "the action is ready to resume trial." In opposition to the motion, defendant's attorney argued, among other things, that plaintiff's motion failed to demonstrate that plaintiff is presently ready for trial. The Civil Court denied plaintiff's motion, stating, erroneously, that more than one year had passed since the case had been marked off without restoration. The court also stated, citing CPLR 3404, that plaintiff had failed to demonstrate "a reasonable excuse, a meritorious claim, lack of intent to abandon [and a] lack of prejudice to [defendant]."
At the outset, we note that, contrary to the determination of the Civil Court, plaintiff's motion to restore was made within one year after the action had been "marked off" the trial calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). We further note that CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), not to cases in the Civil Court.
Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), when an action has been stricken from the calendar and a party moves within a year to restore the action to the calendar, that 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." Here, plaintiff's counsel's bare assertion, that the action had been stricken because plaintiff's witness had been "unavailable," was conclusory, since it failed to provide any indication as to who the witness was or any reason as to why the witness was unavailable. As plaintiff failed to proffer a satisfactory explanation for the action having been stricken from the calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]), plaintiff's motion was properly denied. In view of the foregoing, we do not reach the parties' remaining contentions.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 01, 2016