KAHGAN v. ALWI

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Docket Number

No. 2008-06567.

Attorney(S)

Rovegno Taylor, P.C., Great Neck, N.Y. (Robert B. Taylor of counsel), for appellant. Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for respondent Farooqi Alwi. Robert P. Tusa, Garden City, N.Y. (Donald W. Sweeney of counsel), for respondents Orit Sperber and Julian Sperber.

Judges

Peter B. Skelos
Cheryl E. Chambers
Leonard B. Austin

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Smart Summary

Factual and Procedural Background

This case arises from an action to recover damages for personal injuries. The plaintiff, Rhonda Kahgan, appealed from an order of the Supreme Court, Queens County, which denied her motion under CPLR 3404 to restore the action to the trial calendar. The plaintiff had filed a note of issue on January 6, 2005. On November 9, 2005, at the plaintiff’s request, the case was marked off the trial calendar following defendants' motion for summary judgment. Within one year of the case being marked off, the plaintiff moved in or about July 2006 to restore the action to the trial calendar; however, this motion never appeared on any court calendar. In January 2008, the plaintiff again moved to restore the matter to active status for determination on the merits, but the Supreme Court denied this motion. The appellate court reversed that denial and granted the motion to restore.

Legal Issues Presented

Whether the Supreme Court properly exercised its discretion in denying the plaintiff’s motion to restore the action to the trial calendar under CPLR 3404.
Whether the plaintiff’s delay in prosecuting the action after it was marked off the calendar constituted abandonment of the case.
Whether the plaintiff demonstrated a meritorious cause of action and lack of prejudice to the defendant sufficient to justify restoration to the trial calendar.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanchez v Denkberg, 284 AD2d 446	Establishes a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned.	The court applied this presumption but found it rebutted by plaintiff’s timely initial motion and other factors.
Ford v Empire Med. Group, 123 AD2d 820	Confirms that the court retains discretion to grant a motion to restore a case to the trial calendar even after the one-year period has expired.	The court exercised this discretion in favor of restoration based on the circumstances.
Drucker v Progressive Enters., 172 AD2d 481	Supports finding a reasonable excuse for delay and lack of intent to abandon the action.	The court relied on this precedent to conclude the plaintiff had a reasonable excuse for delay and did not intend to abandon the case.
Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490	Guides the exercise of discretion in restoring cases to the trial calendar when a meritorious cause of action exists and defendants are not prejudiced.	The court found the plaintiff demonstrated a meritorious cause and lack of prejudice, supporting restoration.
Acciarito v Homedco, Inc., 237 AD2d 236	Addresses the standards for restoring cases to active status after delay.	The court cited this case to support its conclusion that restoration was appropriate.

Court's Reasoning and Analysis

The court began by recognizing that CPLR 3404 creates a rebuttable presumption of abandonment if a case marked off the trial calendar is not restored within one year. Here, the plaintiff had moved to restore the case within that one-year period, but the motion was never calendared or addressed by the court. The court noted ongoing activity in the case before the second motion to restore, indicating no abandonment. Although the plaintiff delayed in moving a second time, the court found a reasonable excuse for this delay and no intent to abandon the action. The plaintiff also demonstrated a meritorious cause of action and no prejudice to the defendants. Based on these findings and the discretionary authority granted by precedent, the court concluded that the Supreme Court had abused its discretion in denying restoration and reversed the order accordingly.

Holding and Implications

The appellate court reversed the Supreme Court’s order and granted the plaintiff’s motion to restore the action to the trial calendar.

The direct effect of this decision is to reinstate the plaintiff’s personal injury action for trial. The court did not establish new precedent but emphasized the proper exercise of discretion under CPLR 3404, reinforcing that procedural delays may be excused when justified and when no prejudice to defendants is shown.

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RHONDA KAHGAN, Appellant, v. FAROOQI ALWI et al., Respondents. (And a Third-Party Action.)

Ordered that the order is reversed, on the facts and in the exercise of discretion, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion to restore the action to the trial calendar is granted.

The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case was marked off the trial calendar, at the plaintiffs request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff moved, in or about July 2006, to restore the action to the trial calendar. However, although the notice of motion indicated a return date, this motion never appeared on any court calendar. In January 2008 the plaintiff again moved for an order "restoring this matter to active status for determination on the merits." This motion was denied by the Supreme Court, and we reverse.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned ( see Sanchez v Denkberg, 284 AD2d 446). The court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired ( see Ford v Empire Med. Group, 123 AD2d 820). Here, it is undisputed that the plaintiff initially moved to restore the matter to the trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion. Moreover, the record reveals that there was continued activity on the case just before the second motion to restore was made. Although the plaintiff could have more promptly moved a second time to restore the case to the calendar, under all of the circumstances, we conclude that there was a reasonable excuse for the delay in prosecution and a lack of intent to abandon the action ( see Drucker v Progressive Enters., 172 AD2d 481). Furthermore, the plaintiff has demonstrated a meritorious cause of action and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in refusing to restore the matter to the trial calendar ( see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490; Acciarito v Homedco, Inc., 237 AD2d 236).