Barreto v Kotaj

[*1] Barreto v Kotaj 2009 NY Slip Op 51057(U) [23 Misc 3d 142(A)] Decided on May 29, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570415/08.

Nelson Barreto, Plaintiff-Appellant,

against

Mirsad Kotaj, Defendant, -and- T & R Construction Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered April 10, 2007, which granted the motion of defendant T & R Construction Co. to dismiss the complaint and denied plaintiff's cross motion to restore the action to the trial calendar.

Per Curiam:

Order (Joan M. Kenney, J.), entered April 10, 2007, reversed, without costs, defendant's motion denied, plaintiff's cross motion granted, and action restored to the trial calendar.

This 2001 personal injury action was marked off the trial calendar in July 2005, following plaintiff's nonappearance at several preliminary conferences. Plaintiff's application to restore the case to the trial calendar, made approximately 20 months later, should have been granted upon plaintiff's showing of a potentially meritorious cause of action (a showing not challenged by defendant below), a reasonable excuse for the delay in seeking restoration, a lack of prejudice to defendant, and the absence of an intent to abandon the action (see 22 NYCRR § 208.14[c]; Kaufman v Bauer, 36 AD3d 481, 482 [2007]; see also CPLR 3404). Plaintiff provided a reasonable excuse for failing to appear at the preliminary conferences and the subsequent delay, based upon his (now former) attorney's physical illness and apparent "neglect of matters entrusted to him, culminating in his [suspension from the practice of law]" (Uddaraju [*2]v City of New York, 1 AD3d 140, 141 [2003]). The neglect of counsel, a solo practitioner, "should not inure to the detriment of his innocent client" (Werner v Tiffany & Co., 291 AD2d 305, 306 [2002]). Defendant's claim of prejudice — the only factor specifically referenced by Civil Court in denying plaintiff's request for relief — amounts to an allegation that the passage of time, standing alone, has impaired its ability to defend this matter despite the completion of discovery, a claim of prejudice which is legally insufficient (see Nunez v Resource Warehousing & Consolidation, 6 AD3d 325, 327 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 29, 2009