Monday, November 17, 2014

Denial of Motion to Restore Case to Calendar in New York



The following papers numbered 1 to 7 read on this motion to vacate the dismissal and restore this case to the calendar.

Notice of Motion - Affidavits - Exhibits - Service 1-4
Answering Affidavits - Exhibits - Service 5-7
Replying Affidavits - Exhibits - Service

Upon the foregoing papers it is ORDERED that this motion by plaintiff to restore the within action to the calendar and to schedule a Compliance Conference is denied.

Plaintiff failed to appear at the Preliminary Conference originally scheduled for November 11, 2013, and rescheduled for December 2, 2013. Furthermore, plaintiff failed to appear at the Compliance Conference which was held on March 11, 2014.

Thereafter, the Court served plaintiff with a 90-day Notice pursuant to CPLR 3216, and the defendant also served plaintiff with a copy of said Notice and Compliance Conference Order on March 12, 2014.

When plaintiff failed to comply with said 90-day Notice, the Court dismissed the within action on August 6,2014.

In this motion, plaintiff purports to excuse her failure to file a Note of Issue, alleging that as a "pro se", she "did not know the importance of failing to file a Notice of Issue," and "believed that the Court would schedule another conference."

In effect, plaintiff is seeking to vacate the Court's dismissal order of August6,2014. It is well settled that "to vacate the dismissal of the action pursuant to CPLR 3216, the plaintiff was required to demonstrate a reasonable excuse for [her] defaults and a meritorious cause of action." (Bowman v. Kusnick, 35 AD3rd 643; 644; also see Parkin v.Ederer, 27 AD3rd 633; and Bettv v. Citv of New York, 12 AD3rd 472, 473)

Plaintiff has failed to demonstrate a reasonable excuse for her defaults. No excuse whatsoever has been given by plaintiff for her failure to appear at a Court ordered Preliminary Conference, Compliance Conference, besides her failure to file a Note of Issue. It further appears that plaintiff has not responded in any fashion to defendant's discovery demands, set forth in the aforementioned orders.

Finally, plaintiff has also set forth a meritorious cause of action.

In the absence of a satisfactory showing either of reasonable excuse or of merit, the motion must be denied.

Dated: November 3, 2014

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