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Leonard Leitner and Joann Leitner v. Leon Goldstein and Slope Realty Co

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


April 5, 2011

LEONARD LEITNER AND JOANN LEITNER,
APPELLANTS,
v.
LEON GOLDSTEIN AND SLOPE REALTY CO.,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 8, 2009.

Leitner v Goldstein

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order denied plaintiffs' motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, without costs.

Plaintiffs did not move to restore the action within one year after it had been stricken from the trial calendar (see Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 [c]) and, therefore, were required to show, among other things, a reasonable excuse for the delay (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]; Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Ambrose v Rudzewick, 19 Misc 3d 143[A], 2008 NY Slip Op 51100[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [2001]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in concluding that plaintiffs had failed to offer a reasonable excuse for the delay of more than 3½ years in seeking to restore the action to the trial calendar (see e.g. Bornstein v Clearview Props., Inc., 68 AD3d 1033 [2009]; Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 419 [2006]). We note that plaintiffs also failed to establish that defendant would not be prejudiced if the action was restored to the trial calendar, as 11 years had passed from the time of the acts which are the subject of this lawsuit to the date of the motion to restore (see Bornstein v Clearview Props., Inc., 68 AD3d at 1035; Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419). Plaintiffs' remaining contentions are unpreserved for appellate review or lack merit.

Weston, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

In order to restore this action to the trial calendar, plaintiffs were required to show a reasonable excuse for their failure to submit this motion to restore for a period of 3½ years. Plaintiffs assert that their reasonable excuse was predicated upon a stay of all proceedings due to defendants' insurance company being in liquidation.

The flaw in plaintiffs' argument is that there was no stay in effect during the entire time period in question, i.e., the period from February 2004, when plaintiffs filed a notice of trial, until September 2007, when plaintiffs moved to restore the case to the calendar.

It should be noted that, on December 14, 2001, the Supreme Court, upon the application of the Superintendent of Insurance, stayed all proceedings involving defendants' insurance company for a period of 180 days. Thereafter, on or about June 17, 2002, a further order was issued which extended the stay for a period of 120 days.

All orders of extension issued thereafter specifically restricted the stay to "any application for a default judgment and/or proceeding on judgments." It is important to note the subsequent orders of extension specifically stated that, "All actions may proceed, including disclosure, motion and calendar practice, mediation and trial" (emphasis added).

Since there was no stay in effect during the time period in question, such alleged stay could not serve as a reasonable excuse for failing to restore this case to the calendar. I am troubled, however, that defense counsel did not address plaintiffs' claims with any specificity when they were raised. Instead, defendants simply summarily dismissed the issue in its limited response.

Decision Date: April 05, 2011

20110405

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