Ronsco Const. Co., Inc. v. 30 East 85th Street Co.

• Decision Date: 25 April 1996
• Citation: 219 A.D.2d 281,641 N.Y.S.2d 33
• Parties: RONSCO CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. 30 EAST 85TH STREET COMPANY, etc., et al., Defendants-Appellants, and The Belton-Stark Brick Corporation, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 33

641 N.Y.S.2d 33

219 A.D.2d 281

RONSCO CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. 30 EAST 85TH STREET COMPANY, etc., et al., Defendants-Appellants and The Belton-Stark Brick Corporation, Defendant.

Supreme Court, Appellate Division First Department.

April 25, 1996.

John M. O'Connor, of counsel, New York City (DeForest & Duer, attorneys) for plaintiff-respondent.

Ian L. Blant, of counsel, New York City (Gurfein & Graubard, attorneys) for defendants-appellants.

Before MURPHY, P.J., and SULLIVAN, WALLACH, ROSS and WILLIAMS, JJ.

WILLIAMS, Justice.

This appeal addresses the questions of whether this action should be deemed dismissed pursuant to CPLR 3404 where plaintiff moved to restore it to the trial calendar within one year of the date that it was marked off the calendar, and the motion was granted but entered more than one year from the date it had been marked off; and whether, in any case, plaintiff met the burden for restoring the action to the calendar.

In December 1985, the parties entered into a contract whereby plaintiff agreed to provide "rough and finish" carpentry work on a construction project, and defendant agreed to pay approximately $425,000 for such work.

On March 13, 1989, plaintiff commenced an action against defendant seeking in excess of $316,000 for work performed on the project by plaintiff but not paid for by defendant. Scott Zaretsky, plaintiff's vice president, was the sole officer with knowledge sufficient to establish plaintiff's case.

In 1990, Zaretsky was diagnosed with Lyme disease. As a result, he allegedly suffered symptoms such as severe memory loss, lack of concentration for long periods and bouts of extreme physical pain. He also alleged that he was unable to sit for long periods of time, that he was required to take weekly injections of antibiotics, and that the disease caused severe mood swings requiring that he take antidepressants.

Apparently due to this diagnosis, several depositions of Zaretsky were adjourned and because he could not sit or concentrate for long periods, three separate sessions were required to complete his deposition. Zaretsky has been on full disability since September 1991.

In November 1992, a note of issue and certificate of readiness was served and filed in this action. The case was scheduled to be heard for trial on November 9, 1993, but Zaretsky's medical condition and defendant's counsel's engagement in another matter prompted an adjournment until March 1, 1994. On March 1, 1994, the case was adjourned again for trial until May 3, 1994, but Zaretsky's medical condition again prevented his participation on that date. Plaintiff's counsel was forced to request another adjournment which the IAS court denied and proceeded to mark the case off the trial calendar.

In February 1995, Zaretsky underwent surgery to remove four nerves, allegedly infected with the Lyme bacteria, from his chest. On May 2, 1995, alleging that Zaretsky was now physically able to participate in a trial, plaintiff's counsel moved to restore this action to the trial calendar.

The motion was granted by the IAS court, which held that plaintiff had timely moved to restore this action pursuant to CPLR 3404; that Zaretsky's Lyme disease provided an adequate excuse for the delay in prosecuting this action; that Zaretsky's affidavit of merit demonstrated a good and meritorious cause of action; that the only prejudice suffered by defendant due to the delay was the cost of maintaining the bond to discharge the mechanic's lien for an additional year; and that such costs would be assessed against plaintiff on the judgment entered after trial.

CPLR 3404 states as follows:

A case in the supreme court or a county court marked "off" or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

The rule followed by this Court has been that in order to avoid automatic dismissal pursuant to CPLR 3404, the action must be actually restored to the trial calendar within the one year period after it has been stricken, i.e., the motion to restore must be granted and entered within the one year timeframe (see, Mamet v. Mamet, 132 A.D.2d 479, 518 N.Y.S.2d 5, lv. denied 70 N.Y.2d 611, 523 N.Y.S.2d 495, 518 N.E.2d 6; 3 Park Avenue Co. v. New York City Educ. Constr. Fund, 109 A.D.2d 656, 486 N.Y.S.2d 245). Today, however, we adopt the interpretation of the "one year" rule recently set forth by the Third Department in Maida v. Rite Aid Corp., 210 A.D.2d 589, 619 N.Y.S.2d 812, whereby the motion to restore is deemed timely if made within one year of the matter being stricken from the trial calendar. We...