Ym Soon Kim v. Soon Jung Choi

299 A.D.2d 408, 749 N.Y.S.2d 432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for assault and for property damage, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated September 28, 2001, as denied her cross motion to restore the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

When neither party appeared for trial on January 18, 2001, the Supreme Court dismissed the complaint. The plaintiff’s motion to restore was scheduled to be heard on June 26, 2001. The parties submitted a stipulation to adjourn the motion to July 24, 2001, and it was not until July 27, 2001, that they became aware of the fact that the Supreme Court had refused their request and the motion had been “submitted on default.” By order dated June 27, 2001, the Supreme Court granted the plaintiff’s motion to restore “to the extent that upon service upon the Trial Term Clerk of this Court of a copy of this order, a new Note of Issue and payment of any requisite fees, said Clerk is directed to restore the within action to the [calendar] of this Court for August 22, 2001 at 9:30 a.m.”

The plaintiff did not satisfy the above conditions before August 22, 2001, and when the plaintiff tried to restore the matter pursuant to the directions in the order dated June 27, 2001, the clerk informed her that the order was no longer valid and the matter could only be restored by motion.

The defendant, having been served with the ineffective late note of issue, moved to vacate it and to have the case “marked off” with prejudice. The plaintiff cross-moved to restore. By order dated September 28, 2001, the Supreme Court denied the defendant’s motion as academic and denied the plaintiff’s cross motion to restore, stating that the plaintiff failed to satisfy the requirements necessary to vacate a dismissal (see CPLR 5015).

Under the circumstances of this case, where the Supreme Court dismissed the complaint based upon the plaintiff’s failure to appear for trial, in order to restore the action to the trial calendar, the plaintiff was required to submit proof necessary to vacate a default, including, inter alia, the existence of a meritorious cause of action (see Basetti v Nour, 287 AD2d 126; Yousian v New York Med. Ctr. Hosp. of Queens, 277 AD2d 449). The plaintiff failed to meet this standard. Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.