Appeal by plaintiff from so much of an order of the Civil Court, Kings County (B. Battaglia, J.), entered on April 25, 2002, as denied his cross motion to restore the case to the trial calendar.

Order insofar as appealed from reversed without costs and plaintiffs motion to restore the case to the trial calendar granted on condition that plaintiffs attorney pay defendant the sum of $500 within 30 days of service of a copy of the order entered hereon with notice of entry.

We find that the court below improvidently exercised its discretion in denying the motion where plaintiff demonstrated a reasonable excuse for the default, a meritorious cause of action, a [*2]lack of intent to abandon and a lack of prejudice to the defendant. In light of the strong policy to dispose of cases on the merits, the motion should be granted on condition that plaintiffs counsel pay the sum of $500 to defendant.

Pesce, P.J., , and Aronin, J., concur.

Patterson., J., dissents in a separate memorandum.

Patterson J., dissents and votes to affirm the order in the following memorandum:

Plaintiff did not move to restore the case to the calendar within one year after it was dismissed (see Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.14) and was therefore required to show the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to defendant (see Lang v Wall St. Mtge. Bankers, NYLJ, June 10, 1999 [App Term, 2d & 11th Jud Dists]; see also LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [2002]). Plaintiff, in my opinion, failed to meet this burden.

Plaintiff neither presented a reasonable excuse for the delay, nor did he establish a lack of prejudice to the defendant. Plaintiff attributes his almost two-year delay in moving to restore the action to the fact that his newly retained counsel was unaware that the case had been stricken from the calendar. Conspicuously absent from plaintiffs papers is any explanation for why he waited more than one year to retain new counsel after the case had been marked off, and why new counsel waited almost eight months after discovering that the case had been marked off to move to restore the action (compare Rifkin v Herman, 262 AD2d 389 [2d Dept 19991 [trial court properly restored action to calendar where plaintiff was unaware that the case had been marked off at her attorney's request, and where plaintiff, upon discovering what had happened, "promptly" retained new counsel and moved to restore the action]). Also absent from plaintiffs papers is an affidavit from former counsel explaining his nonappearance at the March 3 1, 2000 calendar call, which resulted in the instant default. Under these circumstances, I conclude that the trial court properly exercised its discretion in denying plaintiffs motion to restore.
Decision Date: December 22, 2003