43-45 E. 60th LLC v Kim
Annotate this CaseDecided on September 16, 2004
Civil Court of the City of New York, New York County
43-45 EAST 60th LLC, Petitioner-Landlord,
against
LINDA KIM, Respondent-Tenant, "JOHN DOE" and "JANE DOE" Respondent-Undertenant.
58020/03
Belkin, Burden, Wenig & Goldman, LLP, New York City (Edward G. Baer of counsel), for petitioner.
Gerard Zwirn, New York City, for respondent.
Gerald Lebovits, J.
Petitioner commenced this illegal sublet holdover proceeding on February 20, 2003. Respondent appeared through counsel. The parties adjourned the proceeding to April 1, 2003, for a Korean interpreter to assist and for a possible deposition. On April 1, 2003, respondent consented to discovery, and the parties agreed by stipulation to mark this proceeding off calendar pending discovery. On July 8, 2003, petitioner took respondent's deposition. On May 13, 2004, petitioner filed a consent to change attorneys. Petitioner now moves through new counsel over [*2]one year later by notice of motion filed July 29, 2004, to restore the proceeding to the court's trial calendar. (Baer Affirmation dated July 23, 2004.) Respondent's counsel opposes petitioner's motion and seeks dismissal of the proceeding because petitioner waited over a year to restore the proceeding and because his client is currently in Korea.
The Uniform Civil Rules for the New York City Civil Court apply to summary proceedings. (Centennial Restorations Co. v Wyatt (248 AD2d 193, 196 [1st Dept 1998, mem]; Alpert v Wolf, 194 Misc 2d 126, 129 [Civ Ct, NY County 1992].) The Uniform Civil Rules for the New York City Civil Court (22 NYC RR § 208.14 [c]) imposes certain conditions on when a motion to restore may be made. According to the rule, "[a]ctions stricken from the calendar may be restored . . . by motion . . . made within one year after the action is stricken." (22 NYCRR 208.14 [c].) Interpreting the meaning of Civil Court rule 208.14 (c), the court in Centennial Restorations combined by inference the concepts "stricken" with "marked off calendar." (248 AD2d at 196.) Thus, the word "stricken" includes within its meaning the phrase "marked off calendar." (Manhattan Mansions v Gonclaves, 2003 NY Slip Op 51445[U], *8 [Hous Part, Civ Ct, NY County].) The First Department in Centennial Restorations noted that compliance with Civil Court rule "208.14 [c]'s one-year deadline is a necessary but not a sufficient condition for a motion to restore . . . ." (248 AD2d at 196.)
The one-year period creates a presumption of abandonment that proof of litigation in progress will overcome. (Bonott v Troy, 244 AD2d 260, 261 [1st Dept 1997, mem].) The proceeding was marked off calendar on April 1, 2003, and petitioner took respondent's deposition on July 8, 2003. Petitioner offers no proof that anything transpired on this case after July 8, 2003. Petitioner cannot overcome the presumption of abandonment. But if it could, petitioner would have to meet additional criteria associated with a motion to open a default. (See Rodriguez v Middle Atlan. Auto Leasing, Inc, 122 AD2d 720, 722 [1st Dept 1987, mem], appeal dismissed 69 NY2d 874 [1987]; Manhattan Mansions, 2003 NY Slip Op 51445[U], *8 ].)
A party that does not move to restore within one year after a proceeding is marked off calendar must show a reasonable excuse for the delay, a meritorious claim, a lack of intent to abandon the proceeding, and an absence of prejudice to the opposing party. (Palermo v Lord & Taylor, 287 AD2d 258, 259 [1st Dept 2001]; Lewis v D.L Peterson Trust, 2002 NY Slip Op 40534 [U], * 1 [App Term, 2d & 11th Jud Dists 2002, mem]; LoFredo v CMC Occupational Health Srvcs., PC, 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001, mem]; Alpert v Wolf, 194 Misc 2d at 130-131.) Petitioner shows no reasonable excuse for the delay or a lack of intent to abandon. The court need not, therefore, reach the other factors.
Through a member of the LLC, petitioner alleges, but only for the first time in its reply papers, that "upon learning that no efforts were being made to move the case forward," it sought new counsel because "the case was in danger of abandonment." (Zeckendorf Reply Affidavit dated July 30, 2004.) Petitioner offers no reason for its or its former counsel's delay. Petitioner does not contend that it tried in vain to contact its former attorney or offer any indication of its former counsel's lack of diligence. For all the court knows, after taking respondent's deposition [*3]petitioner's former counsel advised it that it had a weak case. Maybe petitioner did not pay its attorney, and that is why the case did not move forward. And from petitioner's nonagentive statement, the court does not know who made "no efforts . . . to move the case forward." Petitioner's implicit suggestion is that former counsel is at fault, but petitioner does not say that. Petitioner's statement can be as easily read that another member of the LLC made no effort to move the case forward.
Petitioner relies on Palermo v Lord & Taylor to support its motion to restore. In that case, the First Department reversed a dismissal under CPLR 3404 because "unbeknownst to counsel for any of the parties," the personal injury action was marked off calendar. (287 AD2d at 259.) The First Department did not want to deprive the plaintiff of his right to have the case decided on the merits. Plaintiff's counsel's lack of diligence in failing to appear for a status conference was understandable because "none of the attorneys received notice that any conference or proceeding would be held . . . ." (Id.) Here, however, both sides stipulated to mark the case off calendar. Petitioner offers no reasonable excuse for the delay. And petitioner does not demonstrate that it intended while the proceeding was off calendar to prosecute this proceeding timely.
Petitioner waited over 16 months after the proceeding was marked off calendar and over 12 months after taking respondent's deposition before moving to restore. Nothing took place in the more-than-one-year period after the deposition to overcome the presumption of abandonment. Nor can petitioner offer an excuse for the first time in reply suggesting former counsel is to blame; new matters may not be raised for the first in reply, because respondent is unable to respond. If the court could consider petitioner's excuse, the court would reject its conclusory statement, in the nonagentive passive voice, by a member of the LLC, that "upon learning that no efforts were being made to move the case forward," it sought new counsel because "the case was in danger of abandonment." Petitioner's motion to restore is denied. The petition is dismissed.
This opinion is the court's decision and order.
Dated: September 16, 2004
J.H.C.
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