U.S. Bankv.Hershko

New York Supreme Court, Queens CountyMar 11, 2019
25459/2009 (N.Y. Sup. Ct. 2019)
25459/20092019 N.Y. Slip Op. 50265



U.S. Bank National Association, et al., Plaintiff, v. Eliahu Hershko, et al., Defendants.

The plaintiff motion, filed on January 28, 2019, to restore this case to the calendar is granted without opposition.

This action was commenced by the filing of a summons and complaint on September 22, 2009. In a decision dated June 17, 2015, and entered July 22, 2015, by a Judge of this Court, the matter was dismissed based upon the plaintiff's failure to appear at a status conference. Contrary to the County Clerk's indication that the case was dismissed pursuant to a discontinuance, that was not the reason for the dismissal.

Here, the case was dismissed prior to the filing of a note of issue. Accordingly, the plaintiff was "only required to state a reasonable excuse for [its] failure to appear and to establish that [its] action has merit." See Uddaraju v City of New York, 1 AD3d 140, 141 (1st Dept. 2003); see also 22 NYCRR) 202.27 (b). The Court finds that the plaintiff has established that this foreclosure action is meritorious. In addition, despite the plaintiff's attempt to blame this dismissal on the Judge who issued the order in this case, the Court finds that the plaintiff has provided a reasonable excuse for its failure to appear at the status conference.

The Court further finds that the combined inattentiveness to this case by the plaintiff's two prior attorneys was the cause of the delay. Their neglect required the plaintiff to hire a third attorney to represent it on this foreclosure action. On this record, notwithstanding the almost 42-month delay in filing the instant motion, the Court finds that such delay is excusable. See Uddaraju v City of New York, supra 1 AD3d 140, 141; cf. Campos v. New York City Health & Hosps. Corp., 307 AD2d 785, 785—88 (1st Dept. 2003). For these reasons, and in the absence of a pattern of delay by the plaintiff in this case, the motion to restore this case is granted. See Cato v City of New York, 70 AD3d 471 (1st Dept. 2010).

The plaintiff is directed to file any appropriate motions within 75 days of the filing of this decision and order. In addition, given that the order of dismissal canceled the notice of pendency, a new notice with judicial approval may first be required.

The foregoing constitutes the decision, order, and opinion of the Court. Dated: March 11, 2019 Jamaica, New York Honorable Salvatore J. Modica J.S.C.