Opinion
Index No. 509964/2019
08-28-2023
AMOS HEURTELOU and ALTIMAS HEURTELOU, Plaintiff, v. KATESHA BOOKER and KITTY S. BOOKER, Defendants.
Unpublished Opinion
DECISION & ORDER
HON. FRANCOIS A. RIVERA J.S.C.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 9, 2023, under motion sequence one, by defendants Katesha Booker and Kitty S. Booker (hereinafter the defendants) for an order, pursuant to CPLR 3404, dismissing the complaint of Amos Heurtelou and Altimas Heurtelou (hereinafter the plaintiffs) with prejudice for the plaintiffs' failure and neglect to prosecute the action. The plaintiffs oppose this motion.
■ Notice of Motion
■ Affirmation in Support
o Exhibits A-F
■ Affirmation in Opposition
o Exhibits A-E
BACKGROUND
On May 3, 2019, the plaintiffs commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On July 12, 2019, the defendants joined issue by interposing and filing and answer with the KCCO.
The verified complaint alleges the following salient facts. On October 27, 2016, the plaintiff Amos Heurtelou was operating a 2005 Honda motor vehicle bearing a New York State license plate in the vicinity of Rockway Parkway at the intersection of Seaview Avenue, in the County of Kings, in State of New York. On the same date, time, and place defendant Katesha Booker was operating a 2005 Honda motor vehicle bearing a New York State license plate with the permission of the vehicle's owner Kitty S. Booker. The two vehicles collided due to Katesha Booker's negligent operation of her vehicle and the collision caused the plaintiff to sustain serious physical injury.
UNDISPUTED PROCEDURAL FACTS
On September 16, 2020, a Preliminary Conference was held. An Order was issued directing the plaintiffs to, among other things, file a Note of Issue by May 26, 2021. On November 12, 2021, a Compliance Conference was held, and an Order was issued again directing the plaintiff to, among other things, file a Note of Issue by May 6, 2022.
On March 22, 2022, a Final Pre-Note of Issue Conference was scheduled. At that time the case was marked off the calendar and the plaintiffs were to restore the action by a motion. On July 19, 2022, the parties filed a Stipulation to restore the case to the trial calendar. The Court rejected the stipulation and advised the plaintiffs to file a motion to restore the action. Prior to the filing of the instant motion, the plaintiffs did not make a motion to restore the action.
LAW AND APPLICATION
The defendants seek dismissal of the instant action as abandoned pursuant to CPLR 3404 based on the plaintiffs failure to file a note of issue. Pursuant to CPLR 3404, "a case ... marked off or struck from the calendar ... and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute" (Carrero v Pena, 217 A.D.3d 915, 916-17 [2d Dept 2023]). A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked 'off,' and after the case has been dismissed pursuant to CPLR 3404, must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant (Id., citing Claused v Giambalvo, 168 A.D.3d 810, 811 [2d Dept 2019]).
CPLR 3404, however, is inapplicable to pre-note of issue cases (see Behren v Warren, Gorham &Lamont, 301 A.D.2d 381,382[1st Dept 2003]; Lopez v Imperial Delivery Serv., 282 A.D.2d 190, 198-199 [2d Dept 2001]). In the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked "inactive" is automatic (see Klevanskaya v Khanimova, 21 A.D.3d 350 [2d Dept 2005]; Bar-El v Key Food Stores Co., 11 A.D.3d 420 [2d Dept 2004]; 123X Corp. v McKenzie, 7 A.D.3d 769, 769-770 [2d Dept 2004]). Thus, a motion to restore to active status in such circumstance should be granted (see Badillo v Sheepshead Rest. Assoc., 296 A.D.2d 514, 515[2d Dept 2002]; Jiles v New York City Tr. Auth., 290 A.D.2d 307 [2d Dept 2002]). The remedy for a defendant in a case such as this, pending in a pre-note status, is to serve a 90-day demand pursuant to CPLR 3216 (see Khaolaead v Leisure Video. 18 A.D.3d 820, 821 [2d Dept 2005]; Burdick v Marcus, 17 A.D.3d 388 [2d Dept 2005]).
There is no dispute that the instant action was marked of for failure to file a note of issue. There is also no dispute that the defendants did not serve a 90-day demand pursuant to CPLR 3216. The plaintiffs in opposition to the motion requested, among other things, that they be granted an extension of time to file a note of issue and proffered an excuse for their delay. Under these circumstances, there is no basis to dismiss the instant action or to deny a motion to restore the case to active status (see Hemberger v Jamaica Hosp., 306 A.D.2d 244 [2d Dept 2003]).
CONCLUSION
The motion of defendant Katesha Booker and Kitty S. Booker for an order pursuant to CPLR 3404, dismissing the complaint of Amos Heurtelou and Altimas Heurtelou) is denied.
The matter is restored to active status and the plaintiff is directed to file a note of issue on or before October 3, 2023.
The foregoing constitutes the decision and order of this Court.