Larry Silverstein Esq Silverstein & Kahn Esqs, Attorneys for Plaintiff POITAN.
Rosemarie Woodrick, Esq Office of Robert P. Tusa, Esq, Attorneys for Defendant.
Andrew G. Tarantino, J.
NATURE OF THE MOTION
Plaintiff moves this Court, pursuant to NY Civ. Pract. Laws & Rules §3404, to restore this action to the Trial Calendar after having notified the Court that the action had settled before trial.
This is a personal injury action following a motor vehicle accident in August 2007. On June 21, 2011, the action was transferred to this Court for trial, pursuant to NY Civ. Pract. Laws & Rules (CPLR) §325(d). Trial was scheduled for October 25, 2011. Trial was then adjourned to December 9, 2011, and again to March 21, 2012, because one of the Plaintiffs was having surgery. On March 9, 2012, based upon Defendant's attorney's request, trial was adjourned until March 27, 2012. On March 23, 2012, because Plaintiff was again having surgery connected to the subject injury, the trial was adjourned until June 20, 2012. On June 18, 2012, after not having received the surgeon's reports, the trial was again adjourned to August 6, 2012. The Court marked the trial as "final" and all parties were directed to be prepared to proceed on that date. On August 6, 2012, the Court received a telefax from, and signed by, Plaintiff's counsel which read, " This letter shall serve to confirm that the above referenced matter has been settled for the sum of $25, 000 for Plaintiff Lopez and the sum of $5, 000.00 for Plaintiff Poitan."
BASIS OF THE MOTION
Plaintiff moves to restore the matter to the calendar pursuant to CPLR §3404. In support of the motion were an attorney's affirmation and Plaintiff's affidavit. Plaintiff stated,
"As a result of the accident, I sustained severe and debilitating injuries as follows: medial retinacular injury, contusion, bursitis, left knee, disc bulge at L2-3, L4-5, both encroaching upon the thecal sac, with radiculitis sprain and strain of the lumbar spine, left hip bursitis, muscle spasm, "
"I believe I have a meritorious claim and respectfully request that this Court permit my claim to proceed, as I am ready, willing and able to proceed to trial."
Plaintiff's counsel affirmed that:
"Upon conferring with Plaintiff, plaintiff indicated that she would accept said ...