Opinion
570853/03.
Decided March 30, 2004.
Plaintiff appeals from an order of the Civil court, New York County, entered January 3, 2003 (Donna G. Recant, J.) which granted a cross motion by defendant to dismiss the action and denied as "moot" plaintiff's motion to restore the action to the trial calendar.
Order entered January 3, 2003 (Donna G. Recant, J.) reversed, without costs, plaintiff's motion granted, and action restored to the trial calendar.
PRESENT: HON. LUCINDO SUAREZ, P.J. HON. WILLIAM P. McCOOE HON. MARTIN SCHOENFELD, Justices.
This 1998 negligence action was marked off the trial calendar on August 8, 2000 upon the ground that the previously deposed plaintiff had not appeared at a scheduled independent medical examination. Plaintiff's motion to restore, made approximately 23 months later and after plaintiff submitted to the required medical examination, should have been granted upon plaintiff's showing of a potentially meritorious cause of action, a reasonable excuse for the delay in seeking restoration, a lack of prejudice to defendant, and the absence of an intent to abandon the action ( see, 22 NYCRR § 208.14[c]; see also, CPLR 3404). With respect to plaintiff's excuse for the delay — the only factor cited by Civil Court in denying the requested relief — counsel avers that he had been (mis)advised by a paralegal assistant that the matter had already been placed back on the trial calendar and was simply awaiting a trial date. "While counsel might be faulted for failing to keep track of the status of the case, such an oversight amounts to law office failure, which may be accepted as an excuse for delay" ( Muriel v. St. Barnabas Hosp., ___ AD2d ___, 2004 WL 78349, decided Jan. 20, 2004 (1st Dept]). "Counsel's mistake should not inure to the detriment of his innocent client" ( Werner v. Tiffany Co., 291 AD2d 305, 306).
This constitutes the decision and order of the court.