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Courtney Ferguson v. Port Authority of New York and New Jersey and Delta Airlines

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 10, 2011

COURTNEY FERGUSON,
APPELLANT,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND DELTA AIRLINES, INC.,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated June 21, 2005.

Ferguson v Port Auth. of N.Y. & N.J.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2011

PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ

The order denied plaintiff's motion to restore the case to the trial calendar.

ORDERED that the order is affirmed, without costs.

In this action to recover for personal injuries, plaintiff failed to appear for trial on December 4, 2001 and the action was marked off the Civil Court's calendar. When the case was not restored to the calendar within one year thereafter, the Civil Court clerk deemed the case abandoned and dismissed it, purportedly under the authority of CPLR 3404. In September 2003, plaintiff moved to restore the action to the trial calendar, asserting that the dismissal was void and that he had a meritorious cause of action and an excusable default based on law office failure.

While it was improper for the Civil Court to dismiss the action for neglect to prosecute pursuant to CPLR 3404 (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), as plaintiff did not move to restore the matter within one year after it was stricken from the trial calendar (see Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 [c]), he was required to show, among other things, a reasonable excuse for the delay (see LoFredo v CMC Occupational Health Servs., 189 Misc2d 781 [2001]; Lang v Wall Street Mortgage Bankers, Ltd., NYLJ, June 10, 1999 [App Term, 2d & 11th Jud Dists]). Since the Civil Court properly found that plaintiff had failed to offer a reasonable excuse for the three-year delay in seeking to restore the action to the calendar (see generally Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419 [2006]; Sherry v Sherry, 306 AD2d 398 [2003]; Dalto v 3660 Park Wantagh Owners, 275 AD2d 296 [2000]; Fico v Health Ins. Plan of Greater NY, 248 AD2d 432, 434 [1998]), the order is affirmed.

Golia, J.P., Pesce and Steinhardt, JJ., concur.

Decision Date: January 10, 2011

20110110

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