Opinion
No. 2023-01987 Index No. 707918/16
07-10-2024
Abel Rosario, Jr., appellant, v. Robert Scudieri, respondent.
Stuart R. Lang, Brooklyn, NY, for appellant. Jaime E. Gangemi (Kornfeld, Rew, Newman & Simeone, Suffern, NY [William S. Badura], of counsel), for respondent.
Stuart R. Lang, Brooklyn, NY, for appellant.
Jaime E. Gangemi (Kornfeld, Rew, Newman & Simeone, Suffern, NY [William S. Badura], of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered January 26, 2023. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was to restore the action to the active calendar.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was to restore the action to the active calendar is granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a collision between his bicycle and a vehicle operated by the defendant near the intersection of Myrtle Avenue and Union Turnpike in Queens. Pursuant to a compliance conference order dated April 5, 2017, the plaintiff was required to file a note of issue on or before December 8, 2017. The plaintiff did not file a note of issue by that date, and the action was marked "inactive."
In November 2022, the plaintiff moved, inter alia, to restore the action to the active calendar. By order entered January 26, 2023, the Supreme Court denied the plaintiff's motion without prejudice to renewal "upon proper papers," including an affirmation detailing the reasons for the delay in moving for the relief requested. The plaintiff appeals from so much of the order as denied that branch of his motion which was to restore the action to the active calendar.
Where, as here, a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 (see Rosario v Cummins, 222 A.D.3d 897, 897; Fifth Third Mtge. Co. v Schiro, 210 A.D.3d 953, 954). Under these circumstances, a motion to restore the action to the calendar should be granted "without considering whether the plaintiff had a reasonable excuse for the delay or whether [he] engaged in dilatory conduct" (Wells Fargo Bank, NA v Oziel, 196 A.D.3d 618, 620 [internal quotation marks omitted]; see Fifth Third Mtge. Co. v Schiro, 210 A.D.3d at 954). "Moreover, since this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame" (Fifth Third Mtge. Co. v Schiro, 210 A.D.3d at 954; see Wynn v Wynn-Wright, 201 A.D.3d 1017, 1018).
Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to restore the action to the active calendar.
BRATHWAITE NELSON, J.P., MILLER, VOUTSINAS and VENTURA, JJ., concur.