Silva v Castellano

[*1] Silva v Castellano 2004 NY Slip Op 50669(U) Decided on June 23, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED June 23, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., GOLIA and RIOS, JJ.
NO.2003-1517 Q C

JORGE SILVA, Appellant,

against

SUSAN CASTELLANO and DANIEL E. CASTELLANO, Respondents.

Appeal by plaintiff from an order of the Civil Court, Queens County (A. Gazzara, J.), entered on May 2, 2003, denying his motion to restore the action to the calendar.

Order unanimously reversed without costs and motion to restore the action to the calendar granted on condition that within 20 days of the date of the order entered hereon, plaintiff's counsel serves a copy of said order with notice of entry upon defendants' attorney.

Under the circumstances presented in this case, the motion to restore the action to the calendar should have been granted. In our opinion, the record supports
plaintiff's counsel's allegations that the case had been adjourned to September 12, 2001 and the notation marking the case off the calendar on September 5, 2001 appears to have been a clerical error. In view of the foregoing, the failure to submit an affidavit of merit is not fatal to the motion to restore the action to the calendar (see Rosato v Port Auth. of N.Y. & N.J., 277 AD2d 43 [2000]).
Decision Date: June 23, 2004