Opinion
2005-782 Q C.
Decided December 2, 2005.
Appeal from an order of the Civil Court of the City of New York, Queens County (Denis Butler, J.), entered August 10, 2004. The order denied plaintiff's motion to restore the case to the calendar.
Order unanimously affirmed without costs.
PRESENT:GOLIA, J.P., RIOS and BELEN, JJ.
In this action seeking payment of a workers' compensation insurance premium allegedly due and owing, the court below providently exercised its discretion in denying plaintiff's motion, made some three and a half years after the action was stricken from the trial calendar upon plaintiff's failure to appear for trial, to restore the action to the calendar.
Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 (c) provides:
"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."
Plaintiff failed to meet this one-year deadline and, moreover, would have failed to meet the requirements of this provision even if the motion had been made within the deadline. Since a notice of trial had been filed in plaintiff's case and the action was stricken from the trial calendar, pursuant to CPLR 3404 the action is deemed dismissed ( see Chavez v. 407 Seventh Ave., Misc 3d, 2005 NY Slip Op 25472 [App Term, 2d 11th Jud Dists 2005]), and a heightened requirement of demonstration of excuse, merit, lack of intent to abandon the matter and absence of prejudice to the opposing party must be met to restore the action to the calendar ( see generally Lopez v. Imperial Delivery Serv., 282 AD2d 190, 197; Dunbar v. G. S. Partners, 146 Misc 2d 641 [App Term, 2d 11th Jud Dists 1990]). The conclusory assertions of counsel upon these points are insufficient to meet these requirements ( see Monacelli v. Board of Ed., 92 AD2d 930). Plaintiff failed to submit an affidavit by an individual with personal knowledge of the facts or even any of the documentary evidence upon which it claims this case rests. Moreover, plaintiff submitted no correspondence or other showing that the matter was being actively litigated, provided no reasonable excuse either for the original default or of the delay in making the present motion, and made only a bare assertion that defendant would not be prejudiced by the delay ( see Castillo v. City of New York, 6 AD3d 568).