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First Help Acupuncture, P.C. As Assignee of Emanuel Martinez v. General Assurance Co

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


January 24, 2012

FIRST HELP ACUPUNCTURE, P.C. AS ASSIGNEE OF EMANUEL MARTINEZ,
APPELLANT,
v.
GENERAL ASSURANCE CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 11, 2010.

First Help Acupuncture, P.C. v General Assur. Co.

Decided on January 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order, insofar as appealed from, denied plaintiff's motion to restore the case to the trial calendar.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated to have the case marked off the trial calendar, and the case was stricken from the calendar in May 2007. In February 2009, plaintiff moved to restore the case to the trial calendar and defendant cross-moved to dismiss the complaint. The Civil Court denied both motions. This appeal by plaintiff ensued.

"An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case" (Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 25 Misc 3d 130[A], 2009 NY Slip Op 52114[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 [c]; Leitner v Goldstein, 31 Misc 3d 133[A], 2011 NY Slip Op 50612[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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 [App Term, 2d & 11th Jud Dists 2001]). As plaintiff failed to make the requisite showing, the order, insofar as appealed from, is affirmed.

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

Decision Date: January 24, 2012

20120124

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