Opinion
2013-11-6
Aldawna Delroy CHAMBERS, appellant, v. CITY OF NEW YORK, et al., defendants.
Parker Waichman, LLP, Port Washington, N.Y. (Jay L.T. Breakstone of counsel), for appellant.
, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered November 16, 2011, which denied, without prejudice, his unopposed motion to restore the action to the trial calendar.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion to restore the action to the trial calendar is granted.
It is undisputed that the action was marked off the trial calendar on December 1, 2010. By electing to mark the case off the trial calendar pursuant to CPLR 3404, the trial court set the course for restoration ( see Basetti v. Nour, 287 A.D.2d 126, 135, 731 N.Y.S.2d 35). Since the plaintiff moved to restore the action to the trial calendar within one year after the date it was marked off, restoration was automatic ( see Ross v. Brookdale Univ. Hosp. & Med. Ctr., 54 A.D.3d 370, 371, 863 N.Y.S.2d 236;Kohn v. Citigroup, Inc., 29 A.D.3d 530, 532, 814 N.Y.S.2d 702;Hirsch v. Monroe Bus Corp., 24 A.D.3d 609, 808 N.Y.S.2d 342). Accordingly, the plaintiff's motion to restore the action to the trial calendar should have been granted.