43-45 East 60th LLC v. Kim9/16/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
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 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 ยง 208.14 ) imposes certain conditions on when a motion to restore may be made. According to the rule, " ctions stricken from the calendar may be restored . . . by motion . . . made within one year after the action is stricken." (22 NYCRR 208.14 .) 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 , *8 [Hous Part, Civ Ct, NY County].) The First Department in Centennial Restorations noted that compliance with Civil Court rule "208.14 '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 ; Manhattan Mansions, 2003 NY Slip Op 51445 , *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 , * 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 ca
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