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 2 Replying Affidavits 3 Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, plaintiff’s motion to restore this case to the Court’s active calendar, and to extend plaintiffs time to file a notice of trial, is decided as follows: Plaintiff commenced an action in the Supreme Court for personal injuries sustained in a motor vehicle accident in 2017. It appears that the plaintiff filed a note of issue in the Supreme Court in 2019. The defendant filed a motion for summary judgment in the Supreme Court on the basis that plaintiff did not sustain a “serious injury”. That motion was denied on February 26, 2020, just prior to the Court “shutdown”. Subsequently, this matter was transferred to the Civil Court. On September 27, 2021, this matter was marked off the calendar, NAP (no appearance plaintiff). Plaintiff states that the non-appearance was the result of a clerical error, that the plaintiff’s counsel did not have this matter on its calendar. Plaintiff states that “upon learning of the Court’s most recent determination, your affirmant prepared the instant motion.” Where an action has been marked off the trial calendar, and more than one year has passed without the restoration of the action to the trial calendar, such that the action is deemed abandoned, the party seeking to vacate the dismissal, and to restore a case to the trial calendar, must show four things: 1) a meritorious cause of action; 2) a reasonable excuse for the delay in prosecuting the action; 3) a lack of intent to abandon the action; and 4) a lack of prejudice to the defendant See Nasuro v. Pl Associates, LLC, 78 A.D. 3d 1030 (2nd Dept. 2010). Plaintiff does set forth a possible meritorious cause of action. There has been a delay, bu the pandemic, and its effect on the courts, is unprecedented. Plaintiff has not abandoned the action, and defendant has not claimed prejudice. Plaintiff’s motion to restore this case to the trial calendar is granted. Accordingly, the plaintiff is granted leave to file a note of issue by October 31, 2024. Plaintiff will tender the appropriate court fees, if any. This constitutes the decision and order of the Court. Dated: July 3, 2024
