Tsioumas v Time Out Health & Fitness

Tsioumas v Time Out Health & Fitness 2011 NY Slip Op 08307 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Mazzarelli, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
6104N 26811/04

[*1]Sotirios Tsioumas, Plaintiff-Appellant,

v

Time Out Health & Fitness, et al., Defendants-Respondents.




Sacco & Fillas LLP, Whitestone (Kenneth G. Esehak of
counsel), for appellant.
Callan, Koster, Brady & Brennan, LLP, New York (Janine L.
Peress of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered August 25, 2010, which denied plaintiff's motion to modify an order, same court and Justice, entered July 24, 2009, and deem a copy of said prior order, with notice of entry, to have been served timely nunc pro tunc, unanimously affirmed, without costs.

The July 2009 order, which was affirmed on a prior appeal (78 AD3d 619 [2011]), vacated an order dismissing the action for plaintiff's failure to restore it to the calendar within one year of it being marked off. Contrary to plaintiff's position, our order of affirmance in no way altered or modified the terms of the July 2009 order, which directed plaintiff to serve a copy of the order with notice of entry upon defendant within 20 days of the date the order was issued and stated that "plaintiff may move . . . to restore this action to the trial calendar" upon compliance with the court's directive. Plaintiff did not serve a copy of that order with notice of entry until December 22, 2009, more than four months after the expiration of the 20-day deadline.

Plaintiff moved to modify the portion of the July 2009 order relating to service of the order. The motion was properly denied in light of plaintiff's conclusory assertion of an unspecified "clerical error" as an excuse for the delay and failure to address the subsequent delay in moving for modification. In any event, the delays are part of a pattern of neglect (see Gavillan v City of New York, 11 AD3d 217 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2011

CLERK