Opinion
2009-1676 K C.
08-05-2011
Rubin Haddad, Appellant, v. 2-8 West 47th Street Realty Co. and D.E.M. REALTY CO., Respondents. 2-8 WEST 47TH STREET REALTY CO. and D.E.M. REALTY CO., Third-Party Plaintiffs, HARVARD MAINTENANCE, INC., Third-Party Defendant-Respondent.
PRESENT: : , J.P., PESCE and RIOS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 19, 2009. The order granted defendants' and third-party defendant's motions to dismiss the complaint for lack of prosecution.
ORDERED that the order is reversed, without costs, defendants' and third-party defendant's motions to dismiss for lack of prosecution are denied, and the action shall be placed on the trial calendar in accordance with Uniform Civil Rules for New York City Civil Court (22 NYCRR) § 208.15.
In this personal injury action, commenced in the Supreme Court, a note of issue was filed in the Supreme Court on September 13, 2005 and the action was placed on the trial calendar. The action was transferred to the Civil Court on November 21, 2006 pursuant to CPLR 325 (d). Approximately two years later, defendants served plaintiff with a 90-day notice. Upon the expiration of the 90-day time period, defendants moved to dismiss the complaint for lack of prosecution pursuant to CPLR 3216 on the ground that plaintiff had failed to file a notice of trial. The third-party defendant also moved for the same relief. The Civil Court granted the motions to dismiss, finding that plaintiff had failed to demonstrate a reasonable excuse for the delay and had not provided an affidavit of merit demonstrating a meritorious cause of action.
Upon the transfer of an action to the Civil Court pursuant to CPLR 325 (d), after a note of issue has been filed in the Supreme Court, the action "shall be placed in such order and relative position on the appropriate calendars as they will be reached for trial insofar as practicable as if a notice of trial had been filed in the Civil Court . . . for the same date as that for which the note of issue was filed in the Supreme Court" (Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.15). Thus, by operation of court rule, this action should have been placed on the trial calendar of the Civil Court. Under the circumstances, plaintiff did not have to file a new notice of trial in response to defendant's 90-day notice.
Accordingly, the order dismissing plaintiff's complaint for lack of prosecution is reversed, defendants' and third-party defendant's motions are denied, and the action, by operation of court rule, shall be placed on the trial calendar in accordance with Uniform Civil Rules for New York City Civil Court (22 NYCRR) § 208.15.
Weston, J.P., Pesce and Rios, JJ., concur.