Radi v Mbaye

[*1] Radi v Mbaye 2010 NY Slip Op 52030(U) [29 Misc 3d 138(A)] Decided on November 24, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570678/09.

Ahmed Radi, Plaintiff-Appellant,

against

Fafa Mbaye, Phoenix Refrigerator, Inc., and David Joseph, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered September 23, 2008, which denied his motion to restore the action to the calendar.

Per Curiam.

Order (Julia I. Rodriguez, J.), entered September 23, 2008, reversed, without costs, motion granted, action restored to Civil Court's calendar, and matter remanded to Civil Court for further proceedings.

Plaintiff demonstrated that his action, which was marked off the calendar, should be restored. Plaintiff proffered a reasonable excuse for the delay in moving to restore the action a specific claim of law office failure and evinced the merits of his serious injury claim (see Insurance Law § 5102[d]). With respect to the merits of plaintiff's claim, we note that defendants' prior motion for summary judgment dismissing the complaint was denied on the ground that triable issues existed precluding such judgment in defendants' favor. Plaintiff also sufficiently demonstrated the remaining elements required for restoration relief (see generally Kaufman v Bauer,36 AD3d 481 [2007]). Therefore, plaintiff's motion should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 24, 2010