Opinion
2012-01-31
SOO JI KIM, appellant, v. Scott A. SENEY, respondent.
Law Offices of Sanford F. Young, P.C., New York, N.Y., for appellant. James R. McCarl, Montgomery, N.Y., for respondent.
Law Offices of Sanford F. Young, P.C., New York, N.Y., for appellant. James R. McCarl, Montgomery, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Rockland County (Jamieson, J.), dated March 17, 2011, which denied her motion to restore the action to the trial calendar, and (2), as limited by her brief, from so much of an order of the same court dated June 26, 2011, as, upon renewal and reargument, adhered to the original determination denying the plaintiff's motion to restore the action to the trial calendar and denied her motion to reinstate the note of issue.
ORDERED that the appeal from the order dated March 17, 2011, is dismissed, as that order was superseded by the order dated June 26, 2011, made upon renewal and reargument; and it is further,
ORDERED that the order dated June 26, 2011, is reversed insofar as appealed from, on the law, the plaintiff's motion to reinstate the note of issue is granted, and, upon renewal and reargument, the order dated March 17, 2011, is vacated, and the plaintiff's motion to restore the action to the trial calendar is granted; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial ( see 22 NYCRR 202.21[f]; Ross v. Brookdale Univ. Hosp. & Med. Ctr., 54 A.D.3d 370, 371, 863 N.Y.S.2d 236). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic ( see CPLR 3404; Ross v. Brookdale Univ. Hosp. & Med. Ctr., 54 A.D.3d at 371, 863 N.Y.S.2d 236; Kohn v. Citigroup, Inc., 29 A.D.3d 530, 532, 814 N.Y.S.2d 702; Basetti v. Nour, 287 A.D.2d 126, 133–134, 731 N.Y.S.2d 35).
Moreover, after the matter was stricken from the trial calendar, there was no order dismissing the action pursuant to 22 NYCRR 202.27 ( see Mitskevitch v. City of New York, 78 A.D.3d 1137, 1138, 911 N.Y.S.2d 662; Casavecchia v. Mizrahi, 62 A.D.3d 741, 742, 877 N.Y.S.2d 906; Burdick v. Marcus, 17 A.D.3d 388, 792 N.Y.S.2d 356). Accordingly, the plaintiff's motion to reinstate the note of issue should have been granted, and, upon renewal and reargument, the plaintiff's motion to restore the action to the trial calendar should have been granted.