Nicholos v. Cashelard Restaurant, Inc.

• Decision Date: 28 April 1998
• Citation: 249 A.D.2d 187,672 N.Y.S.2d 98
• Parties: , 1998 N.Y. Slip Op. 3790 George NICHOLOS, Plaintiff-Appellant, v. CASHELARD RESTAURANT, INC., etc., et al., Defendants-Respondents, and "John" McDermott, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 98

672 N.Y.S.2d 98

249 A.D.2d 187, 1998 N.Y. Slip Op. 3790

George NICHOLOS, Plaintiff-Appellant, v. CASHELARD RESTAURANT, INC., etc., et al., Defendants-Respondents and "John" McDermott, et al., Defendants.

Supreme Court, Appellate Division First Department.

April 28, 1998.

Alexander J. Wulwick, for plaintiff-appellant.

Steven J. Popkin and Jeffrey D. Friedlander, for defendants-respondents.

Before MILONAS, J.P., and RUBIN, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about October 24, 1996, which granted defendant-respondent Cashelard's motion and defendant-respondent City of New York's cross motion to dismiss plaintiff's complaint pursuant to CPLR 3404, and denied plaintiff's cross motion to strike defendant-respondents' answers and to restore the action to the calendar, unanimously modified, on the law, the motion and cross motion to dismiss denied, the complaint reinstated and plaintiff's cross motion granted to the extent that the action is restored to the calendar, and otherwise affirmed, without costs.

On July 16, 1985, plaintiff suffered serious injuries, including the loss of his left eye, after he was allegedly assaulted in the Blarney Stone Restaurant, which is owned by defendant Cashelard Restaurant, Inc. ("Cashelard"). Plaintiff claims that the bartender, defendant John McDermott, and several employees and patrons perpetrated the assault. On December 6, 1985, plaintiff returned to the Blarney Stone Restaurant and was subsequently arrested by New York City Police Officer Kenneth Rourke for disorderly conduct and resisting arrest. Plaintiff served a Notice of Claim dated March 5, 1986 on the City of New York ("City"). By verified complaint dated June 26, 1986, plaintiff commenced the instant action against the named defendants for damages arising out of both the July 16th and December 6th incidents. The complaint alleged causes of action for assault and battery, violation of the Dram Shop Act and false arrest against Cashelard, and assault and false arrest against the City and Police Officer Rourke (collectively "City defendants"). The City defendants and Cashelard answered on August 4, 1986, and December 9, 1986, respectively.

The parties engaged in discovery over the next several years, and preliminary conference orders were issued February 1988 and April 1990. On January 3, 1994, plaintiff moved for an order compelling discovery, or, in the alternative, striking defendants' answers. By order dated January 28, 1994, the IAS court conditionally struck defendants' answers if defendants failed to comply with plaintiff's discovery demands within 45 days, and directed plaintiff to file a note of issue within 60 days, if defendants' answers were not stricken before then. Plaintiff filed a note of issue on April 19, 1994.

On May 9, 1994, Cashelard moved to strike the action from the calendar and to vacate the IAS court's January 28, 1994 conditional order. On June 6, 1994, plaintiff cross-moved for an order striking defendants' answers and setting the case down for an inquest, and, on June 10, 1994, moved again for an order compelling discovery. By order dated August 8, 1994, the IAS court denied Cashelard's motion and, for a second time, conditionally granted plaintiff's cross motion unless defendants complied with all outstanding discovery requests within 30 days. The court stated that failure to comply would result in "automatic" striking of defendants' answers, and directed plaintiff to settle an order to that effect.

After the case was adjourned several times based on the outstanding discovery matters, on December 5, 1994, the IAS court marked the case off the calendar after plaintiff's counsel requested an adjournment because the attorney handling the matter, counsel's husband and law partner, was attending to his ill father.

On February 6, 1996, Cashelard moved to dismiss the action pursuant to CPLR 3404, on the ground that plaintiff had abandoned the action by failing to move to restore to the calendar within one year after it had been marked off. On March 22, 1996, the City cross-moved for the same relief. On April 2, 1996, plaintiff cross-moved for an order, inter alia, striking defendants' answers or, alternatively, restoring the action to the trial calendar. Simultaneously, plaintiff moved, before a different IAS Judge (who had previously issued the orders conditionally striking defendants' answers), for an order striking the City's answer. That IAS Judge granted plaintiff's motion on May 22, 1996, striking the City's answer and directing that an inquest be held following the conclusion of the trial against Cashelard.

In the order appealed from, the IAS court (which had not struck the City's answer) granted both defendants' motions to dismiss the action, and denied plaintiff's cross motion to strike defendants' answers and to restore the action to the calendar. The court ruled that plaintiff had failed to rebut the presumption of abandonment under CPLR 3404 since there was no litigation actually in progress during the period the case was marked off. The court further found that plaintiff failed to demonstrate the merit of his causes of action, or that a reasonable excuse existed for his failure to timely restore the case. The court also stated that the striking of the City's answer did not excuse the plaintiff's failure to meet the requirements for restoration under CPLR 3404. We reverse.

A case that has been marked off or stricken from the calendar and has not been restored within one year is deemed abandoned under CPLR 3404 (see, Weiss v. City of New York, 247 A.D.2d 239, 669 N.Y.S.2d 33; Syndicate Build. Corp. v. Lorber, 193 A.D.2d 506, 507, 597 N.Y.S.2d 372). However, the presumption of abandonment may be rebutted by proof of litigation actually in progress (Syndicate Bldg. Corp. v. Lorber, supra at 507, 597 N.Y.S.2d 372; Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720, 721, 511 N.Y.S.2d 595, appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317).

"[O]nce a case is dismissed pursuant to CPLR 3404, a party seeking to restore the case to...