Appeal by plaintiffs from an order of the Civil Court, Queens County (R. Hollie, J.), entered May 17, 2000, which denied their motion to restore their action to the trial calendar with leave to renew upon the submission of an affidavit of merit.

Order reversed without costs and plaintiffs' motion to restore their action to the trial calendar granted.

While the instant action had been previously marked off the trial calendar and thereafter restored, the lower court found that sufficient circumstances existed to warrant marking the case off the calendar for a second time rather than dismissing same (22 NYCRR 208.14 [d]). Since plaintiffs' second application to restore their action to the trial calendar was made within one year after it was marked off, they were not required to demonstrate the merits of their action (Feldman v Allstate Ins. Co., 192 Misc 2d 43 [App Term, 2d & 11th Jud Dists]). Therefore, under the circumstances presented, plaintiffs' motion should have been granted.

Golia and Rios, JJ., concur.

Patterson, J.P., dissents in a separate memorandum.
PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
[*3]TRIFILIO PENA and GLADYS PENA,
Appellants, -
against-
TRIBORO COACH CORPORATION and
VINCENT J. MONGONE,
Respondents.

Patterson, J.P., dissents and votes to modify the order by striking the provision granting plaintiffs leave to renew their motion upon submission of an affidavit of merit in the following memorandum:

Because I disagree with the conclusion that the lower court found "exceptional circumstances" to avoid dismissal under 22 NYCRR 208.14 (d), I respectfully dissent.

Plaintiffs commenced this action alleging personal injuries and property damage as a result of a motor vehicle accident. On September 9, 1998, the case was marked off the trial calendar.
[*4]Subsequently, on September 28, 1998, plaintiffs moved to restore the case, maintaining that they were unable to proceed on September 9 because plaintiff Trifilio Pena's treating physician was unavailable. The Civil Court granted plaintiffs' motion and directed plaintiffs to file a notice of trial and pay the appropriate fee as conditions to restoration.

Plaintiffs complied and the case was restored to the trial calendar on October 1, 1999. On December 14, 1999, after having been marked "final" for trial, the case, again, was marked off the trial calendar after plaintiff Trifilio Pena failed to appear.

On December 20, 1999, plaintiffs moved to restore the case to the trial calendar. This time, they maintained that they were unable to proceed because plaintiff Trifilio Pena was in the Dominican Republic. Plaintiffs further maintained that because their motion to restore was being made less than one month after the case had been marked off, no affidavit Of merit was required. The court denied the motion with leave to renew upon submission of an affidavit of merit.

In-reversing the Civil Court's order, the majority concludes that plaintiffs' second application to restore should have been granted since it was made less than one year after the case had been marked off the trial calendar. Although the majority recognizes that, absent exceptional circumstances, a court must dismiss a previously restored action that is not ready for trial, they nonetheless conclude that sufficient circumstances exist here to avoid dismissal. I disagree.

22 NYCRR 208.14 (c) provides:
[*5]"Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial."
Thus, an affidavit of merit is not required where a plaintiff moves to restore an action within one year of it being marked off.

However, where, as here, a previously restored case is not ready when reached, it shall be dismissed pursuant to 22 NYCRR 208.14 (d). That provision states, in part:

"Absent exceptional circumstances, if a restored case is not ready when reached, it shall forthwith be dismissed or an inquest or judgment ordered as provided in subdivision (b)" (emphasis added).
The mandatory language of the statute is clear and leaves little room for discretion (see Centennial Restorations Co. v Wyatt, 248 AD2d 193 [1st Dept]; see also McKinney's Cons Laws of NY, Book 1, Statutes §§ 171, 177 [a]). "Absent exceptional circumstances, a court "shall" dismiss a previously restored case if it is not ready for trial. Because plaintiffs here were not ready on their restored case, and because there had been no finding of "exceptional circumstances" to warrant otherwise, plaintiffs' case should have been dismissed (see Centennial Restorations Co. v Wyatt, 248 AD2d at 196).

Nevertheless, the majority concludes that by marking the case off the calendar a second time, the court below found "sufficient circumstances" to avoid dismissal. Such an [*6]implication is inconsistent with the statute's strong mandatory language and is unsupported by the record. Nothing in the record indicates that-the court below made a finding of "exceptional circumstances," or any finding for that matter. The court simply marked the case off the trial calendar. Indeed, the unequivocal mandatory language of the statute would appear to require an express finding of "exceptional circumstances" in order to avoid dismissal. To conclude otherwise would impermissibly enable a party to restore a marked off case repeatedly with no real intent to prosecute (see Centennial Restorations Co. v Wyatt, 248 AD2d at 196).

Accordingly, I would vote to dismiss the case outright.
Decision Date: September 03, 2003