Reyes v. Lobo-Villarra

Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed       1 Order to Show Cause Answering Affidavits Replying Affidavits Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, plaintiff’s motion seeking to restore this matter to the trial calendar, is decided as follows: Plaintiff commenced an action seeking recovery from injuries allegedly sustained in a motor vehicle accident in 2015. Plaintiff commenced an action in the Supreme Court in 2015. In 2018, this matter was transferred to the Civil Court. A review of the Court file indicates that there were conferences in Part 20 on June 8, 2018, August 6, 2018, March 4, 2019, July 29, 2019, October 4, 2019, March 23, 2020, November 30, 2020, January 15, 2021, and March 24, 2021. Finally, on July 21, 2021, this matter was marked dismissed, NAP (no appearance plaintiff). A case dismissed, as abandoned, may be restored to the calendar, where the plaintiff establishes a meritorious case, a reasonable excuse for the delay in seeking to restore this case to the calendar, the absence of intent to abandon prosecution, and a lack of prejudice to the defendant. Mere passage of time does not establish prejudice, as would militate against restoration to the calendar of a case which had been dismissed as abandoned, Muriel v. St. Barnabas Hospital, 3 A.D. 3d 419 (1st Dept. 2004). Plaintiff has submitted an affidavit of merit from the plaintiff. Plaintiff states the reason for the non-appearance was law office error. The plaintiff has certainly appeared for many conferences, which indicate that there was no intention to abandon this case.. There has been no opposition to this application. Accordingly, the action is restored to the trial calendar of this Court, upon the payment of any required fees. The plaintiff will serve a copy of this Order, with notice of entry upon the defendants’ attorney, and the Clerk of the Court. This constitutes the decision and order of the Court. Dated: April 16, 2024