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Joseph Daniels v. Manhattan and Bronx Surface Transit Operating Authority

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


February 11, 2013

JOSEPH DANIELS,
RESPONDENT,
v.
MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY AND METROPOLITAN TRANSIT AUTHORITY,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco Jr., J.), entered April 4, 2011.

Daniels v Manhattan & Bronx Surface Tr. Operating Auth.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

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

The order granted plaintiff's motion to restore the action to the trial calendar.

ORDERED that the order is reversed, without costs, and plaintiff's motion to restore the action to the trial calendar is denied without prejudice to renewal within 30 days of the date of this decision and order upon proper papers.

In this action to recover for personal injuries, the parties consented to have the case marked off the trial calendar on December 14, 2009. On February 24, 2011, more than a year after the case had been marked off, plaintiff moved to restore it. Defendants opposed the motion. The Civil Court granted plaintiff's motion and restored the action to the trial calendar.

An action that has been marked off the trial calendar which is not restored to the calendar within one year, may be restored thereafter only if plaintiff demonstrates, among other things, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see First Help Acupuncture, P.C. v General Assur. Co., 34 Misc 3d 144[A], 2012 NY Slip Op 50142[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Ferguson v Port Auth. of NY & N.J., 30 Misc 3d 131[A], 2011 NY Slip Op 50025[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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 generally Uniform Rules for NY City Civil Court [22 NYCRR] § 208.14 [c]). Here, while plaintiff established a reasonable excuse for his delay in moving to restore, he failed to demonstrate a meritorious cause of action. However, in plaintiff's reply papers, he did request, in the alternative, an adjournment of the motion in order to obtain an affidavit of merit.

Accordingly, under the circumstances presented, the order is reversed and plaintiff's motion to restore the action to the trial calendar is denied without prejudice to renewal within 30 days of the date of this decision and order upon proper papers.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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