Opinion
570166/05.
Decided April 5, 2006.
Defendants appeal from an order of the Civil Court, New York County (Saliann Scarpulla, J.), entered October 29, 2004, which granted plaintiff's motion to restore the action to the trial calendar.
Order (Saliann Scarpulla, J.), entered October 29, 2004, affirmed, with $10 costs.
PRESENT: DAVIS, GANGEL-JACOB, JJ.
This negligence action was marked off the trial calendar on July 10, 2002, when the parties orally agreed to submit the claim to arbitration. After numerous unsuccessful attempts to schedule the arbitration and defendants' refusal to honor the agreement to arbitrate, plaintiff moved in September 2004 to compel arbitration or to restore the action to the trial calendar.
Plaintiff's motion to restore the action to the trial calendar was properly granted ( see 22 NYCRR 208.14[c]; see also CPLR 3404). Plaintiff established the potential merit of his claim by the submission of the verified complaint, bill of particulars and an affidavit of merit ( see Nunez v. Resource Warehousing and Consolidation, 6 AD3d 325, 327). Plaintiff adequately explained the delay in seeking restoral and demonstrated that he did not abandon this litigation ( see Fiumefreddo v. Champion Trucks Rental, Inc., 194 AD2d 346). We note that all discovery has been completed and that the matter was marked off calendar through no fault of plaintiff, who made continuing efforts to schedule the arbitration. Finally, defendants' claim of prejudice amounts to an allegation that the passage of time has impaired their ability to defend, a claim of prejudice which is legally insufficient ( Nunez v. Resource Warehousing and Consolidation, 6 AD3d at 327).
This constitutes the decision and order of the court.