Rivera v. City of New York

Appellate Division of the Supreme Court of New York

Rivera v. City of New York

292 A.D.2d 246, 738 N.Y.S.2d 839, 2002 N.Y. App. Div. LEXIS 2906

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

DecidedMarch 19, 2002

StatusPublished

Cited by1 cases

This text of 292 A.D.2d 246 (Rivera v. City of New York) 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

Rivera v. City of New York, 292 A.D.2d 246, 738 N.Y.S.2d 839, 2002 N.Y. App. Div. LEXIS 2906 (N.Y. Ct. App. 2002).

Pincite

Opinion

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered November 1, 2000, which denied plaintiff's motion to restore the matter to the court’s active calendar and to permit him to file a Note of Issue, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion granted.

Inasmuch as plaintiff never served and filed a note of issue, CPLR 3404 was inapplicable as a basis to dismiss the complaint (see, Johnson v Minskoff & Sons, 287 AD2d 233; see also, Jiles v New York City Tr. Auth., 290 AD2d 307). Counsel’s erroneous notification to the court, in August 1998, that the case had been settled, was the only reason the matter was removed from the court’s list of active cases. Such circumstances can have caused neither prejudice to defendant, since its own files would clearly reflect the state of the litigation, nor any other appropriate basis for a denial of the motion to restore. In light of the strong public policy of allowing cases to be decided on their merits (see, Silverio v City of New York, 266 AD2d 129), it was improvident to deny plaintiffs motion. Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Friedman, JJ.

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Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered November 1, 2000, which denied plaintiff's motion to restore the matter to the court’s active calendar and to permit him to file a Note of Issue, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion granted.

Inasmuch as plaintiff never served and filed a note of issue, CPLR 3404 was inapplicable as a basis to dismiss the complaint (see, Johnson v Minskoff & Sons, 287 AD2d 233; see also, Jiles v New York City Tr. Auth., 290 AD2d 307). Counsel’s erroneous notification to the court, in August 1998, that the case had been settled, was the only reason the matter was removed from the court’s list of active cases. Such circumstances can have caused neither prejudice to defendant, since its own files would clearly reflect the state of the litigation, nor any other appropriate basis for a denial of the motion to restore. In light of the strong public policy of allowing cases to be decided on their merits (see, Silverio v City of New York, 266 AD2d 129), it was improvident to deny plaintiffs motion. Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Friedman, JJ.

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Bluebook (online)

292 A.D.2d 246, 738 N.Y.S.2d 839, 2002 N.Y. App. Div. LEXIS 2906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-city-of-new-york-nyappdiv-2002.

Opinion

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