Long-Waithe v. Kings Apparel Inc.

10 A.D.3d 413, 781 N.Y.S.2d 149, 2004 N.Y. App. Div. LEXIS 10316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 16, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated September 10, 2003, which denied her motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the trial calendar.

The plaintiff moved to restore the action to the trial calendar more than one year after it was erroneously marked “settled.” Since the case was marked “settled” and not marked off the calendar pursuant to CPLR 3404 (see Baez v Kayantas, 298 AD2d 416 [2002]), the plaintiff was not obligated to demonstrate a reasonable excuse, meritorious action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the calendar (cf. Basetti v Nour, 287 AD2d 126 [2001]). Nevertheless, the Supreme Court denied the motion based upon the plaintiffs failure to meet such criteria. This was error (see Baez v Kayantas, supra). Accordingly, the motion should have been granted and the matter restored to the trial calendar. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.