Soo Ji Kim v. Seney
| Decision Date | 31 January 2012 |
| Citation | 937 N.Y.S.2d 628,91 A.D.3d 941,2012 N.Y. Slip Op. 00774 |
| Parties | SOO JI KIM, appellant, v. Scott A. SENEY, respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Law Offices of Sanford F. Young, P.C., New York, N.Y., for appellant.
James R. McCarl, Montgomery, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Rockland County (Jamieson, J.), dated March 17, 2011, which denied her motion to restore the action to the trial calendar, and (2), as limited by her brief, from so much of an order of the same court dated June 26, 2011, as, upon renewal and reargument, adhered to the original determination denying the plaintiff's motion to restore the action to the trial calendar and denied her motion to reinstate the note of issue.
ORDERED that one bill of costs is awarded to the plaintiff.
On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial ( see 22 NYCRR 202.21[f]; Ross v. Brookdale Univ. Hosp. & Med. Ctr., 54 A.D.3d 370, 371, 863 N.Y.S.2d 236). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic ( see CPLR 3404; Ross v. Brookdale Univ. Hosp. & Med. Ctr., 54 A.D.3d at 371, 863 N.Y.S.2d 236; Kohn v. Citigroup, Inc., 29 A.D.3d 530, 532, 814 N.Y.S.2d 702; Basetti v. Nour, 287 A.D.2d 126, 133–134, 731 N.Y.S.2d 35).
Moreover, after the matter was stricken from the trial calendar, there was no order dismissing the...
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