Opinion
570929/03.
Decided December 20, 2004.
Defendant and third-party defendant appeal from an order of the Civil Court of the City of New York, Bronx County, entered July 23, 2003 (Robert A. Sackett, J.) which granted plaintiff's cross motion to restore the action to the trial calendar and denied the cross motions of defendant and third-party defendant to dismiss the action and third-party action.
Order entered July 23, 2003 (Robert A. Sackett, J.) reversed, with $10 costs, plaintiff's cross motion to restore the action to the trial calendar is denied, and the cross motions of defendant and third-party defendant to dismiss the action and third-party action, respectively, is granted.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
This personal injury negligence action, commenced in February 1991, was marked off the trial calendar in March 2001 upon plaintiff's nonappearance. Plaintiff's motion to restore the action to the calendar, made nearly two years later in February 2003, should have been denied for plaintiff's failure to make a sufficient factual showing that the case has merit or to present an adequate explanation to excuse the prolonged delay and to rebut the presumption of abandonment ( see 22 NYCRR § 208.14[c]; see also CPLR 3404). Plaintiff's showing on the merits was inadequate, since his terse affidavit was vague as to the condition that caused him to fall and failed to support an inference of notice of the condition, whatever it was ( see Schiavone v. Pisaniello, 270 AD2d 174). And while plaintiff's claim of law office failure may suffice to excuse the initial 16-month delay between the mark-off date (March 21, 2001) and the filing of defendant's dismissal motion in July 2002, plaintiff offered no excuse for his additional seven-month delay (through February 2003) in moving to restore the action to the calendar. Finally, in view of the substantial delay in moving to restore, and the fact that over 12 years had elapsed between the occurrence of the accident and the issuance of the order under review, we cannot conclude that the defendant would not be significantly prejudiced if the matter were restored to the trial calendar ( see Civello v. Grossman, 192 AD2d 636).
We note that the court disposed of the parties' respective cross motions without providing any explanation or reason for its decision, a practice to be avoided ( see Nadle v. L.O. Realty Corp., 286 AD2d 130).
This constitutes the decision and order of the court.