Plaintiff moves to restore this personal injury action to the trial calendar. The action had been "marked off" the trial calendar on June 26, 2006 when plaintiff was not ready to proceed to trial. Plaintiff asserts that the matter was "marked off" due to plaintiff's illness. Defendant cross-moves to dismiss the action for lack of prosecution.

Plaintiff's motion is made pursuant to CPLR §3404 which provides as follows:

"A case in the supreme court or a county court marked "off" or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order."

By its terms, this section of the CPLR does not apply to actions in the Civil Court. Moreover, [*2]this section requires the automatic dismissal of actions not restored to the trial calendar within one year after being "marked off". In fact, there is no statutory provision providing for the automatic dismissal of Civil Court actions for neglect to prosecute and CPLR §3404 recently has been found inapplicable to Civil Court actions. Chavez v. 407 Seventh Ave. Corp., 39 AD3d 454 (2nd Dept 2007).

The appropriate provision governing the restoration of Civil Court matters is 22 NYCRR §208.14. Although by its terms that regulation "governs calendar defaults, restorations and dismissals" based upon the failure or one or more party to appear, NYCRR §§ 208.14 (a) & (b), it has been held to apply to cases "marked off" the court's calendar. Centennial Restorations Co. v. Wyatt, 248 AD2d 193 (1st Dept 1998); Manhattan Mansions v. Gonclaves, 2003 WL 22849767 (Civ. Ct., NY Co., 2003).

An action may be restored to the calendar in Civil Court "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". NYCRR §§ 208.14 c. Where, as here, the motion to restore is not made within one year, the Appellate Term, 2nd & 11th Jud. Dists. has held that the showing required for the grant of a motion to restore is akin to that required to vacate a default, i.e. a meritorious claim and a reasonable excuse for the delay. Feldman v. Allstate Ins. Co., 192 Misc 2d 43 (App Term, 2nd & 11th Jud. Dists., 2002); LoFredo v. CMC Occupational Health Services, PC, 189 Misc 2d 781 (App Term, 2nd & 11th Jud Dists. 2001).

Here, plaintiff's showing is insufficient to warrant the grant of their motion to restore. Plaintiff's affidavit, annexed to the moving papers as Exhibit E, states that plaintiff "fell down a staircase within the premises located at 108 Finlay Street, in Staten Island, New York, due to the combined negligence of the of the [sic] Defendants herein." Affidavit of Fira Babickaia at ¶2. The only other statement made by plaintiff concerning liability for the accident is "I did nothing to cause this accident and I had no way to avoid the same." Id at ¶3. As defendant points out, these statements are insufficient to establish that plaintiff has a meritorious claim. Nowhere does plaintiff indicate in what way defendant was negligent or what caused the accident. The fact that an accident occurred coupled with the conclusory statements that the defendant was negligent and that the plaintiff did not cause the accident does not establish a meritorious claim

Plaintiff has similarly failed to establish a reason for the delay in bringing the instant motion to restore. Plaintiff states in her affidavit that "[o]n June 26, 2006, due to illness, I was unavailable to proceed with the Trial of my case". Babickaia Affidavit, supra at ¶4. There is no indication of the cause of plaintiff's illness, whether she was still ill and what about the illness caused her to be unable to proceed with the trial. There is also no indication of whether the plaintiff is now ready for trial. Plaintiff's affidavit states that her attorneys have informed her that an application is being made to restore her case for trial "and that they are ready for Trial". Id at ¶5. Nowhere does plaintiff say that she is now ready for trial and when she became ready for trial. This is significant because it was plaintiff's illness that allegedly required the case to be "marked off" the trial calendar, not the actions of plaintiff's attorneys. [*3]

For all of the above stated reasons, plaintiff has failed to meet its burden on this motion to restore. Accordingly, the motion to restore is denied and the action is dismissed. Defendant's motion to dismiss pursuant to CPLR §3404 and 22 NYCRR §202.27 is also denied because the sections on which the defendant relies apply only to actions in Supreme Court and County Court.

This is the Decision and Order of the Court.

Dated:July 16, 2008

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LOREN BAILY-SCHIFFMAN, J.C.C.