Plaintiff appeals from an order of the Civil Court, New York County, entered June 23, 2003 (Jose A. Padilla, Jr., J.) which denied her motion to restore the action to the trial calendar.

PER CURIAM:

Order entered June 23, 2003 (Jose A. Padilla, Jr., J.) affirmed, with $10 costs.

Plaintiff's motion to restore this 1993 dental malpractice action to the trial calendar, while timely made within one year after the case had been stricken, was properly denied. The terse affirmation submitted by plaintiff's counsel did not satisfactorily explain the reason(s) that the action was marked off or directly state that the action is presently ready for trial, as required by the governing court rule (22 NYCRR 208.14[c]; see also CPLR 3404). With respect to the former requirement, plaintiff's counsel alleged that the case was stricken on April 23, 2002 by virtue of a stay issued in a bankruptcy proceeding involving defendant's insurance [*2]carrier. That allegation was controverted by defense counsel, whose opposing affirmation attributed the marking off of the case to plaintiff's counsel's nonappearance at the April 23 calendar call. Even accepting plaintiff's counsel's version, his reliance on the bankruptcy stay issued on or about October 15, 2001 is unpersuasive since, so far as shown, the stay was no longer in effect on the mark-off date and, contrary to counsel's bald assertion, would have had no impact on future "trial calls". In these circumstances, and considering the plaintiff's history of delay in prosecuting the action since its inception more than a decade ago, we find no abuse of discretion in the denial of plaintiff's restoral motion.

This constitutes the decision and order of the court.
Decision Date: November 05, 2004