Opinion
Nos. 2022-971 Q C 2023-788 Q C
11-03-2023
Benny Shin, Respondent, v. Douglaston Golf, LLC, Appellant, Yamaha Golf-Car Company, Defendant. Benny Shin, Respondent, v. Douglaston Golf, LLC, Defendant, And Yamaha Golf-Car Company, Appellant.
Law Office of Nicole E. Lesperance (Peter Daniel Cantone of counsel), for appellant Douglaston Golf, LLC. Ansa Assuncao, LLP (David A. Gonzalez of counsel), for appellant Yamaha Golf-Car Company. JSL Law Office, P.C., for respondent (no brief filed).
Unpublished Opinion
Law Office of Nicole E. Lesperance (Peter Daniel Cantone of counsel), for appellant Douglaston Golf, LLC.
Ansa Assuncao, LLP (David A. Gonzalez of counsel), for appellant Yamaha Golf-Car Company.
JSL Law Office, P.C., for respondent (no brief filed).
PRESENT: CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
Appeals from an order of the Civil Court of the City of New York, Queens County (Wendy C. Li, J.), entered September 2, 2022. The order denied a motion by defendant Douglaston Golf, LLC and a cross-motion by defendant Yamaha Golf-Car Company to dismiss so much of the complaint as was asserted against each of them, respectively, and, sua sponte, restored the action to the calendar.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further, ORDERED that, on the court's own motion, so much of the notices of appeal as are from the portion of the order that sua sponte restored the action to the calendar are deemed to be applications by each appellant to appeal from that portion of the order, and leave to appeal is granted to each appellant (see CCA 1702 [c]); and it is further, ORDERED that the order is modified by vacating so much thereof as sua sponte restored the action to the calendar; as so modified, the order is affirmed, without costs.
In May of 2017, plaintiff commenced this action in Supreme Court, Queens County, to recover for injuries he sustained after he was struck by a golf cart manufactured by defendant Yamaha Golf-Car Company (Yamaha), at a golf course operated by defendant Douglaston Golf, LLC (Douglaston) on May 3, 2016. Plaintiff filed a note of issue on November 23, 2018. Thereafter, several discovery orders were issued directing plaintiff to comply with discovery, each of which included one or more sanctions for failure to comply. On December 17, 2019, with discovery outstanding, the action was transferred to the Civil Court, Queens County, pursuant to CPLR 325 (d). On February 24, 2020, the action was marked off the calendar upon plaintiff's failure to appear in Civil Court at a calendar call (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [b]). In March of 2020, the Civil Court refused to sign plaintiff's Order to Show Cause seeking to restore the action to the calendar and then to transfer the case back to the Supreme Court, and for other related relief.
Two years later, citing to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), Douglaston moved, and Yamaha cross-moved, to dismiss so much of the complaint as was asserted against each of them, respectively, on the ground that plaintiff failed, and is unable, to restore the case to the calendar. In affirmations in opposition to each motion and "in Support of Plaintiff's Cross Motion to Restore this Matter to the trial calendar," plaintiff's counsel argued, among other things, that plaintiff's March 2020 Order to Show Cause constituted a motion to restore, that COVID-19 had disrupted the normal course of events, that Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c) does not provide for the dismissal of an action that has been marked off the trial calendar, that defendants have not shown that they have been prejudiced by the delay, and that plaintiff has a meritorious cause of action. In their respective replies, defendants argued that plaintiff's counsel's affirmations in opposition cannot be considered a cross-motion and that, in any event, plaintiff has failed to satisfy the requirements for restoration, including setting forth that he has a reasonable excuse for failing to appear on February 24, 2020 and that the action is presently ready for trial.
In an order entered September 2, 2022, the Civil Court denied defendants' respective motion and cross-motion and, sua sponte, restored the action to the calendar and ordered that "[p]laintiff shall proceed with discovery."
This action was marked off the trial calendar on February 24, 2020, having been on it for over a year without genuinely being ready for trial. Discovery had not been completed, and, per plaintiff's counsel's opposing affirmations, continues to remain outstanding. Contrary to plaintiff's contention, he failed to "make a motion on notice to all other parties within one year after the action was stricken... supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial" (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14). Consequently, restoring the action pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c) was improper.
Defendants' respective motion and cross-motion to dismiss so much of the complaint as was asserted against each of them, relying on Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), were properly denied. This rule contains no provision for dismissing an action as abandoned (see Hillside Place, LLC v Shahid, 55 Misc.3d 101 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Chavez v 407 Seventh Ave. Corp., 39 A.D.3d 454 [2007]; Q-B Jewish Med. Rehabilitation, P.C. v Metlife Ins. Co., 42 Misc.3d 146 [A], 2014 NY Slip Op 50354[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Harris v Stern & Montana, LLP, 16 Misc.3d 136 [A], 2007 NY Slip Op 51619[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Consequently, the action remains off the calendar.
Accordingly, the order is modified by vacating so much thereof as, sua sponte, restored the action to the calendar.
BUGGS, J.P., MUNDY and HOM, JJ., concur.