Waller v Crawford

Waller v Crawford 2004 NY Slip Op 24448 [6 Misc 3d 44] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 09, 2005

[*1] Perry Waller, Appellant,
v
Herbert E. Crawford, Respondent.

Supreme Court, Appellate Term, Second Department, November 15, 2004

APPEARANCES OF COUNSEL

Mallilo & Grossman, Flushing (Francesco Pomara, Jr., of counsel), for appellant. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, and Ronald I. Lemberger, Hempstead (Jonathan A. Dachs of counsel), for respondent.

{**6 Misc 3d at 44} OPINION OF THE COURT

Memorandum.

{**6 Misc 3d at 45}Order unanimously reversed without costs and plaintiff's motion to restore the action to the trial calendar granted on condition that plaintiff file a notice of trial within 30 days of the date of the order hereon; otherwise order affirmed without costs.

Plaintiff instituted this action to recover damages for personal injuries sustained in an automobile accident. The record establishes that the action had been placed on the trial calendar. Thereafter, defendant's motion for summary judgment was granted. However, said motion for summary judgment was subsequently vacated upon reconsideration by the court below. Whereas Uniform Civil Rules for the New York City Civil Court (22 NYCRR) § 208.17 is silent as to the procedures to be followed in order to have the action placed once again on the trial calendar after an order granting defendant's motion for summary judgment dismissing the action has been vacated, plaintiff should have diligently filed a new notice of trial to restore the action to the trial calendar. However, in the absence of any prejudice to defendant, plaintiff's motion to restore the action to the calendar is granted.

Aronin, J.P., Patterson and Golia, JJ., concur.