Appeal by defendant from an order of the Civil Court, Kings County (R. Garson, J.), entered on August 26, 2003, granting plaintiff's motion to "restore the action to the calendar."

Order unanimously reversed without costs and plaintiff's motion seeking in effect to vacate the dismissal of the action denied.

The instant action had been marked off the trial calendar on February 8, 2001 and thereafter restored by order entered January 7, 2003. Subsequently, the plaintiff failed to appear for trial. Where a case has been previously restored to the trial calendar and is not ready when reached, absent exceptional circumstances, "it shall forthwith be dismissed . . ." (Uniform Civil Rules for the New York City Civil Court [22 NYCRR] § 208.14 [d]). Plaintiff was required to establish exceptional circumstances to prevent dismissal of the action if she was not ready to proceed to trial. However, plaintiff's counsel merely alleges in his affirmation that the default was neither willful nor intentional and the "affidavit of merit" submitted in support of plaintiff's motion was not signed. Thus, plaintiff failed to establish any exceptional circumstances warranting the relief requested and the motion should have been denied. We note that the court below erred as the case had been dismissed and restoration to the calendar pursuant to Uniform Civil Rules for the New York City Civil Court (22 NYCRR) § 208.14 (c) was not the appropriate remedy.

In view of the foregoing, we need not consider the remaining issues raised on appeal.
Decision Date: June 23, 2004