Rakha v. Pinnacle Bus Servs.

• Citation: 949 N.Y.S.2d 769,2012 N.Y. Slip Op. 06017,98 A.D.3d 657
• Parties: Adel A. RAKHA, appellant, v. PINNACLE BUS SERVICES, et al., respondents.
• Decision Date: 22 August 2012
• Court: New York Supreme Court Appellate Division

98 A.D.3d 657

949 N.Y.S.2d 769

2012 N.Y. Slip Op. 06017

Adel A. RAKHA, appellant,

v.PINNACLE BUS SERVICES, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 22, 2012.

Hallock & Malerba, P.C., Babylon Village, N.Y. (James M. Sheridan, Jr., of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K. Raicus of counsel), for respondents Pinnacle Bus Services and Jesus Figueroa.

Fixler & LaGattuta, LLP, New York, N.Y. (Clark A. Whitsett of counsel), for respondents Nasir L. Kambo and Samer S. Khoga.

MARK C. DILLON, J.P. JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated May 9, 2011, which denied her motion, in effect, for leave to renew her prior motion to restore the action to active status, which had been denied in an order of the same court dated May 18, 2010.

ORDERED that the order dated May 9, 2011, is reversed, on the facts and in the exercise of discretion, with costs, the plaintiff's motion, in effect, for leave to renew her prior motion to restore the action to active status is granted, upon renewal, the order dated May 18, 2010, is vacated, the plaintiffs' motion to restore the action to active status is granted, and the action is restored to active status without the necessity of any further motion practice related to the restoration of the action.

In October 2005, the plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a November 2002 motor vehicle accident. On November 20, 2007, the plaintiff apparently failed to appear for a compliance conference, and the case was marked “other final disp[osition],” and removed from active status. At that time, no note of issue had been filed. In an order dated May 18, 2010, the Supreme Court denied the plaintiff's motion to restore the action to active status. In the order appealed from, dated May 9, 2011, the Supreme Court denied the plaintiff's motion, in effect, for leave to renew the prior motion. The plaintiff appeals from the order dated May 9, 2011, and we reverse.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][2], [3]; see DeMarquez v. Gallo, 94 A.D.3d 1039, 1040, 943 N.Y.S.2d 169;Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772, 936 N.Y.S.2d 564;Ferdico v. Zweig, 82 A.D.3d 1151, 1153, 919 N.Y.S.2d 521). The requirement that a motion for leave to renew must be based on new facts is a flexible one ( see Dervisevic v. Dervisevic, 89 A.D.3d 785, 787, 932 N.Y.S.2d 347;J.D. Structures v. Waldbaum, 282 A.D.2d 434, 436, 723 N.Y.S.2d 205;Cole–Hatchard v. Grand Union, 270 A.D.2d 447, 447, 705 N.Y.S.2d 605;Daniel Perla Assoc. v. Ginsberg, 256 A.D.2d 303, 681 N.Y.S.2d 316).

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the motion for leave to renew ( see DeMarquez v. Gallo, 94 A.D.3d at 1040, 943 N.Y.S.2d 169;Del Bene v. Frank C. Perry, DDS, P.C., 83 A.D.3d 771, 772, 921 N.Y.S.2d 150;Daria v. Beacon Capital Co., 299 A.D.2d 312, 749 N.Y.S.2d 79;Malik v. Campbell, 289 A.D.2d 540, 735 N.Y.S.2d 793).

Here, the action was never formally dismissed, as the calendar procedures of CPLR 3404 do not apply to pre-note of issue actions ( see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 193–194, 725 N.Y.S.2d 57), no 90–day notice was ever issued pursuant to CPLR 3216 ( see Wasif v. Khan, 82 A.D.3d 1084, 919 N.Y.S.2d 203;Lopez v. Imperial Delivery Serv., 282 A.D.2d at 194, 725 N.Y.S.2d 57), and no order was issued dismissing the action under 22 NYCRR 202.27 ( see Mitskevitch v. City of New York, 78 A.D.3d 1137, 1138, 911 N.Y.S.2d 662;Grant v. County of Nassau, 28 A.D.3d 714, 814 N.Y.S.2d 219;Clark v. Great Atl. & Pac. Tea Co., Inc., 23 A.D.3d 510, 511, 806 N.Y.S.2d 633;Bar–El v. Key Food Stores Co., Inc., 11 A.D.3d 420, 421, 783 N.Y.S.2d 47). Accordingly, the plaintiff properly moved to restore the action to active status, rather than moving to vacate a dismissal of an action.

Under these circumstances, upon renewal, the Supreme Court should have granted the plaintiff's motion to restore the case to active status ( see Varricchio v. Sterling, 86 A.D.3d 535, 926 N.Y.S.2d 320;Mitskevitch v. City of New York, 78 A.D.3d at 1138, 911 N.Y.S.2d 662;Casavecchia v. Mizrahi, 62 A.D.3d 741, 742, 877 N.Y.S.2d 906;Burdick v. Marcus, 17 A.D.3d 388, 792 N.Y.S.2d 356;123X Corp. v. McKenzie, 7 A.D.3d 769, 776 N.Y.S.2d 893;Lopez v. Imperial Delivery Serv., 282 A.D.2d at 191, 725 N.Y.S.2d 57).

The defendants' remaining contentions are without merit.

Motion by ...