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The Rogak Report: 05 Apr 2007 ** Civil Court - Cases Marked Off Calendar **

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  • Lawrence Rogak
    Message 1 of 1 , Apr 5 12:53 PM

      Chavez v 407 Seventh Ave. Corp., 2007 NY Slip Op 02873 (2d Dept 2007)

      The Appellate Division has identified an anomaly in New York civil
      procedure by holding that in Civil Court -- unlike Supreme or County
      Courts -- when a case is marked off the calendar and plaintiff does
      not move to restore the case within 1 year, the case is NOT
      automatically deemed dismissed.

      Civil Court, Kings County (Rubin, J.) had granted the motions of the
      defendants From Head to Toe of Brooklyn, Inc., Beauty Center and 407
      Seventh Avenue Owners Corp., Roman Katsnelson, and Yury Leschinsky,
      to dismiss the action as abandoned pursuant to CPLR 3404.

      The plaintiff commenced this personal injury action in the Civil
      Court of the City of New York, Kings County, in 1996. The action
      appeared on the "ready" trial calendar on May 31, 2001. The plaintiff
      failed to appear on that date, and the action was "marked off" the
      calendar. The plaintiff never moved to restore the action to the
      trial calendar, and in 2004, the defendants made separate motions to
      dismiss the action pursuant to CPLR 3404 for failure to prosecute.
      The Civil Court granted the defendants' motions, and the plaintiff
      appealed to the Appellate Term of the Supreme Court for Second and
      Eleventh Judicial Districts.

      In a 2-1 decision, the Appellate Term affirmed the Civil Court's
      order dismissing the action. In doing so, the Appellate Term
      overruled several decisions in which that court had held that CPLR
      3404 did not apply to Civil Court actions. The plaintiff, by
      permission of the Appellate Term, appealed to the Appellate Division,
      which reversed.

      "CPLR 3404 provides that 'a case in the supreme court or a county
      court marked 'off' or struck from the calendar or unanswered on a
      clerk's calendar call, and not restored within one year thereafter,
      shall be deemed abandoned and shall be dismissed without costs for
      neglect to prosecute.' The Appellate Term majority acknowledged that
      CPLR 3404, by its terms, applies only to actions in the Supreme Court
      or the County Court, but concluded that the statute could properly be
      applied to the lower courts through New York City Civil Court Act §
      2102, which provides that '[t]he CPLR and other provisions of law
      relating to practice and [procedure] in the supreme court,
      notwithstanding reference by name or classification therein to any
      other court, shall apply in this court as far as the same can be made
      applicable and are not in conflict with this act.'"

      "As the Appellate Term dissenting Justice correctly observed,
      however, CPLR 3404 does in fact conflict with the provision of the
      Uniform Rules for the New York City Civil Court governing matters
      marked off the trial calendar (see 22 NYCRR 208.14[c]), which, unlike
      CPLR 3404, makes no provision for the dismissal of an action that has
      been marked off the trial calendar. The Civil Court's rules
      previously contained a section which, in language similar to that of
      CPLR 3404, provided for the automatic dismissal of actions as
      abandoned if no motion to restore was made within one year after the
      case was marked off the calendar (see 22 NYCRR former 2900.17). That
      provision, however, was repealed, effective January 6, 1986. The
      Civil Court rule which now governs actions stricken from the calendar
      (see 22 NYCRR 208.14[c]) makes no provision for dismissing an action
      for neglect to prosecute (see LoFredo v. CMC Occupational Health
      Servs., 189 Misc 2d 781). The replacement of a provision authorizing
      dismissal with a provision that does not authorize dismissal
      presumably reflects a deliberate choice to omit any authorization for
      such a dismissal. Applying the automatic dismissal provision of CPLR
      3404 in Civil Court actions conflicts with that deliberate omission,
      and, therefore, is not permitted by New York City Civil Court Act §

      "Contrary to the conclusion of the Appellate Term majority, this
      court's decision in Gonzalez v. First Natl. Supermarket (232 AD2d
      609) should not be read as 'implicitly approv[ing] of the application
      of CPLR 3404 in the Civil Court,' as the issue of the statute's
      applicability was not presented in that case."

      "Accordingly, CPLR 3404 does not apply to Civil Court actions, and
      the Civil Court had no authority to dismiss this action as abandoned.
      Therefore, the defendants' motions, inter alia, to dismiss the action
      should have been denied."

      Comment: This is a very significant decision, especially for the
      thousands of No Fault lawsuits pending in the Civil Court. No Fault
      suits get marked off the calendar all the time, and
      defendants/insurers mark their diaries for one year hence, upon which
      they happily note that the suit is "deemed dismissed." No more!

      So what is the practical effect for attorneys on both sides? Well, a
      case marked off stays alive, in some kind of legal limbo, until
      either side makes a motion to restore the case to the active
      calendar. I would not advise plaintiffs' attorneys to get too
      relaxed and allow their cases to languish until such time as
      they "get around" to restoring their cases; while there is apparently
      no legal provision for dismissing Civil Court cases that get marked
      off the calendar, I would advise counsel, to borrow a phrase from
      Professor David Siegel, to let the law get tested on "somebody else's

      But what should defense counsel do with these marked-off cases?
      Insurance companies hate to have to leave claim files open
      indefinitely. Well, if a plaintiff's attorney appears to be
      neglecting such a file, why not move for summary judgment and take a
      chance that plaintiff will default on it, or that defendant might
      win? Or, defendant can move to restore the case to the calendar on
      its own. Then if plaintiff doesn't show up for trial, the suit
      should be dismissed.

      Larry Rogak
      For any attorney involved in no-fault claims, ROGAK'S NEW YORK NO-
      FAULT LAW & PRACTICE is essential. Buy it at:
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