DECISION AND ORDER On January 25, 2011, the Plaintiff commenced this action in the Supreme Court seeking damages arising from an automobile accident that occurred on July 12, 2010. On July 11, 2014, this matter was transferred to the Civil Court pursuant to CPLR §325(d). On February 21, 2018, after numerous adjournments, the case was marked off the calendar because the Plaintiff could not be located. The Plaintiff moves for an order restoring the matter to the Court’s active calendar and scheduling a status conference. The parties stipulated that the matter be restored to the active calender but did not agree as to whether the matter should be scheduled for a trial or conference. Due to the numerous adjournments and delays, the Defendant argues that the case should be restored for trial and marked final against the Plaintiff.Actions stricken from the calendar may be restored to the calendar by motion on notice to all other parties, made within one year after the action is stricken. See Kaufman v. Bauer, 36 A.D.3d 481 (1st Dept. 2007), quoting 22 NYCRR 208.14(c). A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial. 22 NYCRR 208.14.In his Affirmation, Plaintiff’s attorney states that the delay in prosecuting this case stems from the law firm’s inability to reach the Plaintiff prior to and on the date scheduled for jury selection. He further states that the Plaintiff has since been contacted and intends to move forward to trial and attend all necessary court dates. In opposition, the Defendant argues that there have been twenty-two court appearances from the time that the case was transferred and that the case should be marked final for trial.It is well-settled that parties are afforded great latitude in how they conduct litigation and may chart their own litigation course. Cullen v. Naples, 31 NY2d 818 (1972); California Suites, Inc. v. Russo Demolition Inc., 98 AD3d 144 (1st Dept. 2012). Allowing the parties to chart their litigation own course should result in less court intervention and greater judicial economy. However, despite the parties’ desire to chart their own litigation course and to stipulate to the restoration of the instant case, the Court is required to deny an application where it finds that the application lacks merit. Although the parties consented to restoration, the Court finds that the application lacks merit because the Plaintiff has failed to meet its burden in seeking to restore this case to the calendar. The Plaintiff’s motion fails to provide a reasonable excuse for the delay in prosecuting this case. See generally, Lichtman v. Cemetery, 283 A.D.2d 333 (1st Dept. 2001); Rosado v. Bronx Lebanon Hosp., 278 A.D.2d 9 (1st Dept. 2000). The Affirmation by Plaintiff’s attorney asserts in a vague and conclusory fashion that the delay was due to the inability to reach the Plaintiff, and as such, fails to comply with the requirements set forth in the rules governing restoration of a case to the calendar. The general allegation that the Plaintiff’s law office was unable to reach the Plaintiff, without any further elaboration or substantiating facts, is insufficient to establish a satisfactory reason for the lack of communication or delay. The failure by the Plaintiff to maintain contact with his attorney shows an intent to abandon the case. If there were some extenuating circumstances that prevented contact or if the lack of communication was the result of law office failure, it was incumbent on the Plaintiff to provide such information and documentation with his submission. Moreover, the Plaintiff’s attorney does not have personal knowledge of the Plaintiff’s intention to cooperate and appear on future court dates. Nowhere in the Plaintiff’s moving papers does the Plaintiff submit an affidavit as required by the statute, provide a reasonable excuse for the delay or demonstrate that he is presently ready for trial. Further, the fact that the Plaintiff requested a conference date and not a trial date also indicates that the Plaintiff is not ready for trial.While it is a strong policy of the courts to give wide latitude to the parties to chart their own litigation course, in circumstances where the case has excessively surpassed court standards and goals, in this case the incident that gave rise to the action occurred eight years ago and the case has been in limbo for seven years, for the sake of judicial economy, the wide latitude is no longer a privilege provided to the parties and the parties waive their right to chart their own course.Accordingly, Plaintiff’s motion is denied with leave to timely renew upon the presentation of the necessary facts and documentation.Dated: August 30, 2018
