There is a certain high-volume plaintiffs' no-fault firm -- which I need not name -- which has, of late, been making many motions to restore their cases to the trial calendar long after they had been marked off the calendar for one reason or another. And by "long after," I mean much more than one year. By statute, when a case is marked off the calendar and the plaintiff does not move to restore it for more than one year, it cannot be restored unless the plaintiff demonstrates a valid excuse for the delay and a demonstration of the merits of the case (the same criteria for moving to vacate a default). However, some judges have, of late, been reluctant to apply this rule and are liberally allowing such cases to be restored without requiring either the excuse for lateness or the merits. This decision may hopefully restore order to the universe.
This was an appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), which denied plaintiff 's motion to restore the case to the trial calendar.
"In this action by a provider to recover assigned first-party no-fault benefits, the parties consented to have the case marked off the trial calendar in March 2007. In August 2008, plaintiff moved to restore the case. The Civil Court denied plaintiff 's motion 'with leave to renew upon a proper showing/reasonable excuse as to why plaintiff did not move to restore within one year of the case being marked off the trial calendar.'"
"An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see Kaufman v Bauer, 8 Misc 3d 60 [App Term, 1st Dept 2005], revd on other grounds 36 AD3d 481 [2007]; see generally Uniform Rules for Trial Courts [22 NYCRR] § 208.14 [c]; Goldstein v Block, 7 AD3d 669 [2004]). Herein, plaintiff failed to satisfy the foregoing requirements. Accordingly, the order is affirmed."