[*1]
Jasphy v Klein
2004 NY Slip Op 51617(U)
Decided on December 15, 2004
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 15, 2004
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570105/04

Renette Jasphy, Plaintiff-Appellant,

against

Fannie Klein, individually and d/b/a Fay Har Realty, Defendants-Respondents.


Plaintiff appeals from an order of the Civil Court, New York County, entered June 2, 2003 (Paul G. Feinman, J.) which, inter alia, denied her motion to restore the case to the trial calendar.


PER CURIAM:

Order entered June 2, 2003 (Paul G. Feinman, J.) affirmed, with $10 costs.

This long-pending action, seeking damages for personal injuries allegedly sustained by plaintiff(tenant) as a result of the defendant(landlord's) negligence in permitting "water flooding" into plaintiff's residential apartment, was marked off the trial calendar in July of 2000, more than two and a half years before the subject motion to restore. In these circumstances, the motion was properly denied for plaintiff's failure to make a sufficient factual showing that the case has merit, to adequately explain the prolonged delay in seeking restoral, or to demonstrate that restoral would not prejudice the defendants (see Brucculeri v Metro-North Commuter R.R. Co., 216 AD2d 66 [1995]). With respect to the issue of prejudice, we find unpersuasive plaintiff's novel argument that "[s]ince the case arose in or about 1986, it is so old [*2]that there can be no additional prejudice to the defendant[s] from the delay between July 14, 2000 [the mark-off date] and this date
[i.e., January 20, 2003, the filing date of plaintiff's restoral motion]."

This constitutes the decision and order of the court.
Decision Date: December 15, 2004