Garcia v Sandford-Columbus Assoc., Inc.

[*1] Garcia v Sandford-Columbus Assoc., Inc. 2009 NY Slip Op 50364(U) [22 Misc 3d 139(A)] Decided on March 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570191/08

Jose Garcia, Plaintiff-Appellant,

against

Sandford-Columbus Associates, Inc., Defendant-Third party plaintiff-Respondent, Miranda Construction Corp., Third-party defendant- Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered June 13, 2007, which denied his motion to restore the action to the trial calendar.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered June 13, 2007, reversed, with $10 costs, motion granted and the matter remanded for further proceedings, including reconsideration of defendant's motion for summary judgment on the merits.

This action, marked off calendar for further discovery, should have been restored to the trial calendar upon plaintiff's demonstration of a potentially meritorious claim, a reasonable excuse for the delay, a lack of intent to abandon the proceeding and a lack of prejudice to defendant (see Kaufman v Bauer, 36 AD3d 481 [2006]). We note that defendant expressly stipulated to restore the matter to the calendar upon completion of disclosure.

Inasmuch as this matter is being restored to the trial calendar, defendant's timely motion for summary judgment should be decided on the merits (see Roman v City of New York, 38 AD3d 442 [2007]; Dixon v 2707 Ave. Corp., 272 AD2d 245 [2000].

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 05, 2009