Weiss v. City of New York

• Decision Date: 10 February 1998
• Citation: 669 N.Y.S.2d 33,247 A.D.2d 239
• Parties: , 1998 N.Y. Slip Op. 1360 Stephen WEISS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 33

669 N.Y.S.2d 33

247 A.D.2d 239, 1998 N.Y. Slip Op. 1360

Stephen WEISS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 10, 1998.

John V. Decolator, for Plaintiff-Appellant.

Mordecai Newman, for Defendant-Respondent.

Before SULLIVAN, J.P., and ELLERIN, TOM and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Walter Tolub, J.), entered January 16, 1997, limited by plaintiff-appellant's briefs, denied plaintiff's motion to restore this action to the trial calendar and directed the clerk to enter judgment in favor of defendant dismissing the action as abandoned, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and the matter restored to the trial calendar.

In this personal injury action, plaintiff, a police officer, seeks recovery for severe hearing loss and related injuries allegedly resulting as a consequence of numerous cannon blasts near plaintiff when he was assigned to crowd control during "Operation Sail" at Battery Park on July 4, 1992. Plaintiff alleges that although, after the first shot of several 21-gun volleys, he complained to a superior officer about ringing in his ears; he was not provided with ear plugs until 45 minutes, and more than 100 cannon shots, later.

Plaintiff commenced this action in October 1992, alleging the defendant's failure to provide ear plugs as a cause of injury, and asserted claims sounding in negligence and a violation of General Municipal Law § 205-e. After completion of discovery, the matter was placed on the trial calendar in January 1994. A pre-trial conference was conducted on May 11, 1994, at which outside counsel appeared for plaintiff's law firm. A second conference was scheduled for October 31, 1994. Plaintiff's law firm, which contends that outside counsel never advised it that a second conference was scheduled, failed to appear, and the matter was marked off the trial calendar. Plaintiff's law firm maintained that it had no knowledge that the case was marked off. In excess of one year lapsed before plaintiff realized the case was marked off and moved to restore the matter to the trial calendar by motion dated July 8, 1996. However, in the interim, plaintiff's counsel forwarded medical records to the City on October 13, 1994, corresponded with plaintiff's physician to secure his medical evaluation report on October 14, 1994 and July 27, 1995, sent the report to the City on August 8, 1995 and notified the City on August 17, 1995 that plaintiff intended to call that physician as an expert witness at trial. On none of the occasions when counsel corresponded with the City indicating an ongoing interest in the litigation did the City inform plaintiff's counsel that the action had been marked off the trial calendar. Nevertheless, the IAS court found that plaintiff had failed to rebut the presumption of abandonment arising under CPLR 3404 and had failed to offer a reasonable excuse for timely moving to restore the matter within one year of it being marked off.

A case marked off the calendar and not restored within one year thereafter is deemed abandoned (CPLR 3404), although the presumption is rebuttable (CCS Communication Control, Inc. v. Patent, 193 A.D.2d 435, 597 N.Y.S.2d 330) upon proof of a meritorious cause of action, a reasonable excuse for the delay, a lack of prejudice to the opposing party and a lack of intent to abandon the action (Moye v. City of New York, 168 A.D.2d 342, 562 N.Y.S.2d 664 appeal dismissed 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54). In view of the underlying legislative intent to strike "actually dead" cases (Marco v. Sachs, 10 N.Y.2d 542, 550, 226 N.Y.S.2d 353, 181 N.E.2d 392, rearg. denied 11 N.Y.2d 766, 227 N.Y.S.2d 16, 181 N.E.2d 761; Beltrani v. Mirabile, 141 A.D.2d 688, 529 N.Y.S.2d 573), the court's order in this case was improvident. Given the brief period of delay in this case, there is no discernible prejudice to the defendant if the action is restored (compare, Rodriguez v. Middle Atlantic Auto Leasing, 122 A.D.2d 720, 511 N.Y.S.2d 595, appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317 [case restored 16 years after accident] ). Plaintiff's activities in the interim also evinced no intent to abandon the action. Although courts generally look to...