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Magalie Alfred and Henry Alfred, Respondents v. the Jewish Association For Services For the Aged

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


December 7, 2012

MAGALIE ALFRED AND HENRY ALFRED, RESPONDENTS,
v.
THE JEWISH ASSOCIATION FOR SERVICES FOR THE AGED, APPELLANT, -AND- ARMOR KONE ELEVATOR COMPANY ALSO KNOWN AS MONTGOMERY KONE, DEFENDANT. MAGALIE ALFRED AND HENRY ALFRED, RESPONDENTS, -- THE JEWISH ASSOCIATION FOR SERVICES FOR THE AGED, DEFENDANT, -AND- ARMOR KONE ELEVATOR COMPANY ALSO KNOWN AS MONTGOMERY KONE, APPELLANT.

Alfred v Jewish Assn. for Servs. for Aged

Appellate Term, Second Department

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

As corrected in part through December 17, 2012; it will not be published in the printed Official Reports.

Decided on December 7, 2012

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

Separate appeals by defendants The Jewish Association for Services for the Aged and Armor Kone Elevator Company Also Known as Montgomery Kone from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 5, 2009. The order granted plaintiffs' motion for leave to reargue their prior motion to, among other things, restore the action to the active calendar and compel defendants to appear for examinations before trial, which prior motion was determined by order entered March 11, 2009 (Lewis Douglass, J.H.O), and, upon reargument, conditionally vacated the order entered March 11, 2009 and granted plaintiffs' motion to the extent of restoring the action to the active calendar.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the order is affirmed, without costs.

Plaintiffs initially commenced this action in Supreme Court in 1999. Subsequently, the action was transferred to the Civil Court pursuant to CPLR 325 (d). The complaint alleged, among other things, that, as a result of defendants' negligence, plaintiff Magalie Alfred had sustained injuries in an elevator accident in 1998. After some litigation activity, the case appears to have entered a period of dormancy. On February 19, 2009, plaintiffs moved, pursuant to CPLR 3124 and 3126, to restore the action to the active calendar, to compel depositions, and thereafter for leave to file a notice of trial. In supporting papers, plaintiffs indicated that, in 2007, they had sought to complete discovery. Plaintiffs claimed that they had been advised by the court that, in order to obtain a scheduling conference, they should file a notice of trial, together with an affirmation explaining that discovery was not complete; that they had done so; and that, on February 20, 2008, the action had been marked "disposed" by the clerk. Defendants opposed plaintiffs' motion. By order entered March 11, 2009, the Civil Court (Lewis Douglass, J.H.O.) denied plaintiffs' motion and, sua sponte, dismissed the complaint.

Plaintiffs moved for leave to reargue. By order entered June 5, 2009, the Civil Court (Noach Dear, J.) granted plaintiffs' motion for leave to reargue, and, upon reargument, vacated the order entered March 11, 2009 and restored the case to the active calendar, conditioned upon plaintiffs' payment of the sum of $25 to each defense counsel. Defendants separately appeal from this order. They contend that, pursuant to CPLR 2221 (a), Judge Dear lacked authority to determine plaintiffs' motion for leave to reargue because he had not issued the prior order, and that, in any event, his determination to vacate the order dismissing the action and to restore the action to the active calendar was erroneous.

A judicial hearing officer has "all the powers of a court" to determine an issue (CPLR 4301). Under CPLR 2221 (a), a motion for leave to reargue a prior order is required to be made to the judge who signed the initial order, unless he or she is for any reason unable to hear it. While the record is silent as to whether J.H.O. Douglass was available to hear plaintiffs' motion for leave to reargue at the time it was made, we note that J.H.O. Douglass is not currently serving in the Civil Court. Consequently, remittal to the Civil Court for determination by the judicial hearing officer who signed the initial order would be futile.

Inasmuch as there was neither notice to the parties nor an application by defendants seeking dismissal, it was error for the Civil Court, sua sponte, to direct the dismissal of the complaint in the March 11, 2009 order (see Abinanti v Pascale, 41 AD3d 395, 396 [2007]; Jacobs v Mostow, 23 AD3d 623 [2005]). Nor, where the court had acted sua sponte in dismissing the complaint, were plaintiffs required to limit their arguments to matters of fact or law they had previously argued to the motion court.

We note that where a case "while perhaps comatose [is] still alive" (Lopez v Imperial Delivery Serv., 282 AD2d 190, 200 [2001]), a 90-day notice is required before the case may be dismissed pursuant to CPLR 3126 (id. at 194; see also Baczkowski v Collins Constr. Co., Inc., 89 NY2d 499, 503 [1997]; Neary v Tower Ins., 94 AD3d 723 [2012]; Maharaj v LaRoche, 69 AD3d 684 [2010]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 07, 2012

20121207

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