Peterson v. City of New York

• Decision Date: 30 August 2001
• Parties: DIQUAN PETERSON, an Infant, by His Parent and Natural Guardian, WILHELMINA PETERSON, et al., Appellants,<BR>v.<BR>CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

286 A.D.2d 287

730 N.Y.S.2d 58

DIQUAN PETERSON, an Infant, by His Parent and Natural Guardian, WILHELMINA PETERSON, et al., Appellants,

v.CITY OF NEW YORK, Respondent.

Decided August 30, 2001.

Concur — Sullivan, P. J., Nardelli, Mazzarelli, Rubin and Saxe, JJ.

This action, brought on behalf of an infant by his parent and by the parent, individually, against the City of New York for personal injury, including neurological damage to the infant and derivative loss, respectively, arising out of the infant's ingestion of lead paint, was commenced in October of 1995 and, apparently unbeknownst to the parties, marked off the calendar in June of 1997 as the result, plaintiffs claim, of clerical error. In July of 1997, plaintiffs' new counsel moved to amend the caption to substitute the infant's mother as his guardian in place of his father, to substitute counsel and to extend the time to file the note of issue. The motion was granted without opposition, at least to the extent of substituting the mother as guardian. Although a bill of particulars has been served, relevant Department of Health Records obtained, and depositions of the parties taken, including that of plaintiff mother and a representative of the City, as well as a General Municipal Law § 50-h examination of the father conducted, plaintiffs have failed to take any action in this matter, which was deemed dismissed pursuant to CPLR 3404 in June of 1998, from July 1997, when they moved, as noted, until February 15, 2000, when they moved to restore the action. In support of their motion, plaintiffs noted the serious nature of the action and their confusion as to why the case was marked off the calendar. In opposition, the City argued that plaintiffs failed to demonstrate merit to the action, a reasonable excuse for the delay, a lack of intent to abandon the action and lack of prejudice to the City. In reply, plaintiffs argued that the City could not claim prejudice as a result of any delay in the prosecution of the action, citing the fact that both parents had been deposed. In addition, plaintiffs submitted an affidavit of merit from the plaintiff mother alleging that she observed peeling paint in her apartment before the infant's birth on July 27, 1994 and that she gave notice of the condition to the owner of the building, which failed to remove the paint until after the infant was diagnosed with the poisoning more than nine months after his birth. The IAS court denied the motion, finding neither merit to the action nor sufficient excuse for the delay in moving to restore, as well as prejudice as a consequence thereof. We reverse.

Pursuant to CPLR 3404, a case marked off the calendar and not restored within one year is deemed abandoned and is subject to dismissal for neglect to prosecute. (Rosado v New York City Hous. Auth., 183 AD2d 640.) To prevail on a motion to restore after more than a year has elapsed requires a showing of a meritorious cause of action, lack of prejudice to the opposing party, a reasonable excuse for the delay and lack of intent to abandon the...