Opinion
No. 2022-739 Q C
08-04-2023
Michael Levitt, Respondent, v. Li X. Lei, New York City Transit Authority, and Metropolitan Transportation Authority, Appellants.
MTA Law Department (Timothy J. O'Shaughnessy and Yolanda Ayala of counsel), for appellants. Pollack, Pollack, Isaac & Decicco, LLP (Brian J. Isaac and Jillian Rosen of counsel), for respondent.
Unpublished Opinion
MTA Law Department (Timothy J. O'Shaughnessy and Yolanda Ayala of counsel), for appellants.
Pollack, Pollack, Isaac & Decicco, LLP (Brian J. Isaac and Jillian Rosen of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LOURDES M. VENTURA, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Alan J. Schiff, J.), entered July 8, 2022. The order granted plaintiff's motion to, among other things, restore the action to the calendar.
ORDERED that the order is affirmed, without costs.
In March of 2012, plaintiff commenced this action in Supreme Court, Queens County, to recover for injuries he sustained in a motor vehicle accident with a New York City Transit Authority bus in June of 2011. Defendants served their answer, denying the allegations, and demanded discovery. Plaintiff served his bill of particulars, discovery was conducted and plaintiff was deposed. A note of issue was served and filed in Supreme Court. Following the removal of the action to the Civil Court pursuant to CPLR 325 (d), supplemental bills of particulars were served, additional medical records were exchanged and plaintiff was deposed again. Thereafter, defendants moved to, among other things, strike the notice of trial and certificate of readiness, and remove the action from the trial calendar on the ground that discovery had not been completed on the 5th amended bill of particulars, and to compel plaintiff to provide further discovery or preclude plaintiff from offering any evidence at the trial of this action. On December 16, 2016, the Civil Court issued an order directing plaintiff to provide additional discovery, appear for a further deposition and additional independent medical examinations, and to be prepared, by April 3, 2017, to schedule a firm trial date for sometime in September or October 2017. During the calendar call on April 3, 2017, since discovery had not been completed, the court (Jodi Orlow, J.) either marked the case off the calendar, struck the notice of trial, or both-there is no written order and the record is unclear.
Whereas a note of issue was filed in Supreme Court, upon the removal of the case to Civil Court, the document is deemed a Civil Court notice of trial (see generally CPLR 326 [b]).
After additional discovery was conducted, plaintiff moved in December of 2018 to restore the action to the trial calendar. Defendants cross-moved to dismiss the complaint or compel further discovery. Plaintiff's motion was denied because he failed to appear on the return date, and defendants' cross motion was withdrawn. In March of 2020, plaintiff again moved to restore the action to the trial calendar. Defendants cross-moved to dismiss or compel further discovery. In an order dated April 9, 2021, the Civil Court (Rachel Freier, J.) denied plaintiff's motion with leave to renew upon a showing of a reasonable excuse for the discovery delay between April 3, 2017 and August 10, 2018. Defendants' cross motion was held in abeyance.
Thereafter, plaintiff moved to, among other things," 'automatically' restore the action to the Pretrial Conference Calendar (22 NYCRR 208.18 [b]) or Reserve Calendar (22 NYCRR 208.18 [c])." In an affirmation in support, plaintiff's counsel argued that, "the Court, by Order issued on or around April 3, 2017, vacated the Notice of Trial (also referred to herein as the 'Note of Issue')." Relying on Appellate Division cases such as Partanio v Federal Realty Inv. Trust (213 A.D.3d 685 [2023]), which cases do not deal with Civil Court procedures and rules, plaintiff argued that, upon such vacatur, "this matter automatically reverted to pre-note-of-issue status." Counsel also set forth the discovery that had been conducted between April 3, 2017 and August 10, 2018 and explained why the delay in moving to restore was excusable. Defendants opposed, arguing, among other things, that plaintiff failed to establish a reasonable excuse for the delay or a meritorious cause of action.
By order entered July 8, 2022, the Civil Court (Alan J. Schiff, J.) granted plaintiff's motion, finding that plaintiff had established a reasonable excuse for the delay and a meritorious cause of action, that there had been no intent to abandon the action, and that there was nothing in the record to establish that defendants had been prejudiced by the delay. Acknowledging that "[p]laintiff's argument throughout the entirety of its motion and reply papers revolves around the case reverting to a pre-note-of-issue status," the court stated that it "need not address this argument because the Court finds that the Plaintiff has sufficiently established its grounds for restora[tion] under 22 NYCRR 208.14."
Preliminarily, contrary to defendants' contention, we find that the April 9, 2021 order had granted plaintiff leave to renew. Upon a review of the record, we agree with the Civil Court that plaintiff's moving papers were sufficient to demonstrate a meritorious cause of action, a reasonable excuse for the delay in moving to restore the case, a lack of intent to abandon the action and a lack of prejudice to defendants (see Jamaica Seven, LLC v Santos, 63 Misc.3d 163[A], 2019 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We also agree with the Civil Court that the issue raised by plaintiff, of whether it was even necessary for plaintiff to make this showing because plaintiff was entitled to the "automatic" restoration of his case upon the completion of discovery, need not be decided under the circumstances presented.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.