Fillas v. Hyon Mun Cho

Appellate Division of the Supreme Court of New York

Fillas v. Hyon Mun Cho

296 A.D.2d 356, 745 N.Y.S.2d 427, 2002 N.Y. App. Div. LEXIS 7673

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 25, 2002

StatusPublished

This text of 296 A.D.2d 356 (Fillas v. Hyon Mun Cho) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fillas v. Hyon Mun Cho, 296 A.D.2d 356, 745 N.Y.S.2d 427, 2002 N.Y. App. Div. LEXIS 7673 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 30, 2001, which denied plaintiffs’ motion to restore this action to the calendar, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court (Milton Tingling, J.), entered on or about September 26, 2001, which denied plaintiffs’ motion to renew and reargue their previously denied motion to restore, unanimously dismissed, without costs, as no appeal lies from the denial of reargument and the appeal is otherwise academic in light of our reversal of the prior order.

The evidence demonstrates that plaintiffs’ case was not marked off, struck from the calendar, or unanswered on a clerk’s calendar call, but rather was marked “disposed,” through no fault of plaintiffs, as a result of a clerk’s error. Its dismissal was therefore a nullity, and the subsequent refusal to restore the action to the calendar was error (see, Novaro v Jomar Real Estate Corp., 283 AD2d 352). Under the circumstances, the usual prerequisites for restoration were not applicable (see, Beringer v B.C.P. Mgt. Corp., 280 AD2d 414, 415).

Contrary to defendants’ claims, there is no evidence that the motion court made any favorable ruling with respect to their cross motions, in which they argued that plaintiffs’ claims should be dismissed because they failed to commence their wrongful death action within two years, in accordance with the requirements of EPTL 5-4.1. Accordingly, the merits of those cross motions are not before this Court. Were we, however, to [357]*357consider the merits of those cross motions, we would find that the remedial provisions of CPLR 205 (a) would permit revival of plaintiffs’ otherwise time-barred cause of action, since a prior timely action, however flawed, actually was “commenced” within the meaning of CPLR 304 (see, Carrick v Central Gen. Hosp., 51 NY2d 242, 249). Concur — Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.

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Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 30, 2001, which denied plaintiffs’ motion to restore this action to the calendar, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court (Milton Tingling, J.), entered on or about September 26, 2001, which denied plaintiffs’ motion to renew and reargue their previously denied motion to restore, unanimously dismissed, without costs, as no appeal lies from the denial of reargument and the appeal is otherwise academic in light of our reversal of the prior order.

The evidence demonstrates that plaintiffs’ case was not marked off, struck from the calendar, or unanswered on a clerk’s calendar call, but rather was marked “disposed,” through no fault of plaintiffs, as a result of a clerk’s error. Its dismissal was therefore a nullity, and the subsequent refusal to restore the action to the calendar was error (see, Novaro v Jomar Real Estate Corp., 283 AD2d 352). Under the circumstances, the usual prerequisites for restoration were not applicable (see, Beringer v B.C.P. Mgt. Corp., 280 AD2d 414, 415).

Contrary to defendants’ claims, there is no evidence that the motion court made any favorable ruling with respect to their cross motions, in which they argued that plaintiffs’ claims should be dismissed because they failed to commence their wrongful death action within two years, in accordance with the requirements of EPTL 5-4.1. Accordingly, the merits of those cross motions are not before this Court. Were we, however, to [357]*357consider the merits of those cross motions, we would find that the remedial provisions of CPLR 205 (a) would permit revival of plaintiffs’ otherwise time-barred cause of action, since a prior timely action, however flawed, actually was “commenced” within the meaning of CPLR 304 (see, Carrick v Central Gen. Hosp., 51 NY2d 242, 249). Concur — Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.

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Bluebook (online)

296 A.D.2d 356, 745 N.Y.S.2d 427, 2002 N.Y. App. Div. LEXIS 7673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fillas-v-hyon-mun-cho-nyappdiv-2002.

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