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Long-Waithe v. Kings Apparel Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 16, 2004
10 A.D.3d 413 (N.Y. App. Div. 2004)

Opinion

2003-10410

Decided August 16, 2004.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated September 10, 2003, which denied her motion to restore the action to the trial calendar.

Before: Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.


Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the trial calendar.

The plaintiff moved to restore the action to the trial calendar more than one year after it was erroneously marked "settled." Since the case was marked "settled" and not marked off the calendar pursuant to CPLR 3404 ( see Baez v. Kayantas, 298 AD2d 416), the plaintiff was not obligated to demonstrate a reasonable excuse, meritorious action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the calendar ( cf. Basetti v. Nour, 287 AD2d 126). Nevertheless, the Supreme Court denied the motion based upon the plaintiff's failure to meet such criteria. This was error ( see Baez v. Kayantas, supra). Accordingly, the motion should have been granted and the matter restored to the trial calendar.


Summaries of

Long-Waithe v. Kings Apparel Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 16, 2004
10 A.D.3d 413 (N.Y. App. Div. 2004)
Case details for

Long-Waithe v. Kings Apparel Inc.

Case Details

Full title:LISA LONG-WAITHE, Appellant, v. KINGS APPAREL INC. et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 16, 2004

Citations

10 A.D.3d 413 (N.Y. App. Div. 2004)
781 N.Y.S.2d 149

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