This action arises out of an accident which allegedly occurred in the basement area of P.S. 132, located at 320 Manhattan Avenue, Brooklyn, New York on or about May 15, 1992. On that date, infant plaintiff, a student at said school was in the basement when he allegedly was caused to slip and fall to the ground because of hazardous and defective conditions, and sustained serious personal injuries, including scarring in the area of the infant plaintiff's head. Plaintiffs' commenced their action against the New York City Board of Education by the filing of a Summons and Verified Complaint with the Kings County Clerk on October 16, 1992. According to plaintiffs, a Preliminary Conference was not scheduled in this matter and a discovery schedule never established. On December 1, 1994, however, a Status Conference was conducted in Part 22 of the Court. Plaintiffs further contend that apparently another Status Conference was scheduled for June 30, 1996, although plaintiffs' counsel alleges that no notice of that date was ever received. Plaintiffs' counsel failed to appear on June 30, 1996, and plaintiffs contend that the matter was "marked off" and later marked "disposed". Plaintiffs now move this Court for an Order restoring the matter to "active pre-Note of Issue status" and setting the matter down for a Preliminary Conference. [*2]

Defendant cross-moves the Court for an Order restoring this matter to active pre-note of issue status for the sole purpose of dismissing the case with prejudice; dismissing plaintiffs' complaint pursuant to 22 N.Y.C.R.R. §202.27 for failure to appear at a status conference and failing to move to restore within a reasonable time thereafter, or alternatively; dismissing the plaintiffs' complaint due to the doctrine of laches for the prejudicial delay in failing to move to restore within a reasonable time after the case was marked off.

The instant matter is a pre Note of Issue action "marked off" and "disposed" of when plaintiffs failed to attend a status conference in 1996. No action of any kind has taken place since it was "marked off" in 1996. As plaintiffs now seek to restore this matter approximately thirteen (13) years after it was "marked off", consideration must be given as to what CPLR case management device — CPLR § 3404, CPLR § 3216, or 22 NYCRR § 202.27 — would permit restoration and under what circumstances.

As a pre Note of Issue action, CPLR §3404 does not apply when considering what authority would permit restoration, and the requirements plaintiffs must meet in order to have their action restored. The Second Department found in Lopez, v. Imperial Delivery Services, Inc., 282 AD2d 190 (2d Dept. 2001), that CPLR§ 3404 provides that a case marked off or struck from the calendar and not restored within one year shall be deemed abandoned and shall be dismissed. Such a sanction should not be applied to pre Note of Issue cases, however. "Marking a case off or striking a case before the filing of a note of issue during the discovery phase of litigation is contrary to the trial court's role of expeditiously moving the case to the trial calendar. CPLR §3404 should be reserved strictly for cases that have reached the trial calendar". Lopez v. Imperial Delivery, supra .

CPLR 3126, the second case management device considered, requires three conditions precedent before a case can be dismissed for want of prosecution: (1) issue has been joined; (2) one year has elapsed from the joinder of issue; and (3) the court or a party has served a written demand that the plaintiff file a note of issue within 90 days. Since no ninety (90) day notice was ever served by defendant to the plaintiffs, nor did the Court issue a ninety (90) notice by way of an Order or a Certification Order, CPLR 3126 is, likewise, inapplicable. Lopez v. Imperial Delivery, supra .

Plaintiffs, however, contend that the Second Department has determined that the "restoration" of a pre-Note of Issue action to "active status" pursuant to CPLR §3216 is automatic in the absence of a ninety (90) day notice. Gorski v. St. John's Episcopal Hospital, 36 A.D. 3rd 757, 830 NYS2d 196 (2d Dept. 2007. In Gorski, however, all parties had agreed to strike the Note of Issue on June 5, 2002, and thereafter on July 14, 2003, the Court marked the case "stricken". On appeal, the Second Department found that the July 14th action did not constitute a "marking off" pursuant to CPLR 3404, and as no 90 day notice had been served, restoration of the action was automatic. Simply put, the case was in pre Note of Issue status after the striking of the Note of Issue, and no 90 day notice had been served either by defendant or the Court. Under those facts, restoring the case to active pre Note of Issue status was automatic. In the instant matter, the case was "marked off" in 1996, and no action of any kind has taken place for 13 years.

Plaintiffs cite to Andre v. Bonetto Realty Corp., 32 A.D. 3rd 973, 822 NYS2d 292 (2nd Dept. 2006) as also supporting their position. This Court finds that the holding in Andre [*3]has little relevance to the instant case. In Andre, the trial court denied plaintiff's motion to restore its pre Note of Issue case to active status, after it's Note of Issue had been withdrawn and approximately one year had elapsed. Defendants moved to dismiss the matter pursuant to §3404, and the trial court granted defendant's motion. The Second Department held that §3404 was inapplicable to "pre-note of issue cases" and that in the absence of a 90 day notice, restoration to active status was automatic.

In all the cases cited by plaintiff, the time between the striking, or otherwise removing the case from active pre-note of issue status was, relative to the instant matter, short. Plaintiffs have failed to demonstrate a single case where the Second Department considered a delay as of even five (5) years as reasonable before plaintiff moved to have a case restored.

Had this matter been dismissed pursuant to 22 NYCRR 202.27 (dismissal of pre- Note of Issue cases) instead of being "marked off" and "disposed of," plaintiffs motion to restore would fail unless the plaintiff had moved to restore within one year of the dismissal, and plaintiffs could demonstrate both a reasonable excuse for the failure to appear at a conference, and that a meritorious action exists as required by this Rule. This action was not dismissed pursuant to 22 NYCRR 202.27, however, it was merely "marked off" and "disposed" of, and since it was a pre-Notice of Issue case, "marking it off" had no real impact as it was never on the trial calendar.In Lopez v. Imperial Delivery, supra , the Court makes clear that where a case is "marked of" or purged or stricken from pre-note of issue status, but not ordered dismissed pursuant to 22 NYCRR 202.27, or CPLR § 3126 if a 90 day notice had been served, there is no need for a motion to restore. "The case was, while perhaps comatose, still alive." Lopez v. Imperial Delivery, supra . This Court will follow Lopez and restore plaintiffs action to pre-note of issue status, even thought the delay in Lopez was four (4) years, whereas here, the delay is thirteen (13) years.

Defendants have cross moved to restore this action to pre Note of Issue status and then dismiss, pursuant to 22 NYCRR 202.27. The Court finds that as it has already restored the action, defendant's motion for the same relief is moot. Defendant's motion to dismiss plaintiffs' action pursuant to 22 NYCRR 202.27, however, will be considered as was the defendant New York State Department of Correctional Services' motion to dismiss in Feldstein v. New York State Department of Correctional Services, 55 AD3d 663, 867 NYS2d 464 (2d Dept. 2008). In Feldstein, the plaintiff failed to take any action for 10 years, after failing to appear at a conference in it wrongful termination case. The Court marked the case "Purged No Activity." After plaintiff moved to restore, defendant cross-moved to dismiss for failure to appear at the conference pursuant to 22 NYCRR 202.27. There the Second Department found that plaintiff did not demonstrate a reasonable excuse and the existence of a meritorious defense, and granted defendant's motion to dismiss.

The Second Department went further in Lewis v. New York City Transit Authority, 38 AD3d 201, 829 NYS2d 963 (2nd Dept. 2008) finding that after a delay of eight (8) years [*4]between dismissal of a pre Note of Issue case pursuant to 22 NYCRR 202.27 and plaintiff's motion to restore, "the post dismissal delay was so unreasonable and so prejudicial as to amount to laches" and dismissed accordingly. See, Acevdo v. Navarro, 22 AD3d 391, 802 NYS2d 359 (1st Dept. 2005).^[FN1]

For plaintiffs to prevail against defendant's cross motion for dismissal, they must demonstrate both a reasonable excuse for a thirteen (13) year delay and that a meritorious action exists. Under the facts of this action plaintiffs must also demonstrate that defendant will not be prejudiced by a 13 year delay. Lewis v. New York City Transit Authority, supra .. Plaintiffs' contends that its motion to restore this matter to pre-Note of Issue status after thirteen (13) years is based on a reasonable excuse — its law firm was undergoing "cataclysmic" change in personnel and attorneys. Plaintiffs further contend that its delay represents the "classic law office failure" citing to Storchevoy v. Blinderman, 303 AD2d 672, 757 NYS2d 82 (2nd Dept. 2003) as support for their argument. Storchevoy, however, stands for the proposition that "law office failure" can be a "reasonable excuse for delay", for missing the deadline to file a Note of Issue where the delay was one (1) day, and plaintiff had filed an order to show cause for an extension of time and included an affidavit of merit in the motion. The facts of Storchevoy bear no resemblance to the facts herein. Plaintiffs also cite to Henry v. Kuveke 9 AD3d 476, 781 NYS2d 114 (2nd Dept. 2006). Again, the facts in Henry bare no similarity to the facts in the instant matter at all. There, the Court found there that a delay of 10 days in opposing summary judgment was not prejudicial:Given the strong public policy in favor of resolving cases on the merits, the plaintiffs' lack of intent to abandon the action, the lack of prejudice to the respondents caused by the plaintiffs' delay in opposing their summary judgment motions, and the fact that the plaintiffs' delay was not willful, the plaintiffs should not be deprived of their day in court. Henry v. Kuveke, supra .

In another case cited by plaintiffs, Amota v. Commack Union Free School District, 32 A.D. 3rd 807, 821 NYS2d 230 {32 AD3d 807} (2nd Dept. 2004), the length of the delay was not specified, but was clearly in months, not years. Finally, in Reyes v. Ross, 289 AD2d 554, 735 NYS2d 198 (2nd Dept. 2001), plaintiff moved for an extension of time after a 90 day notice had been served, and offered a reason for delay and an argument as to why his case was meritorious. After denial of plaintiff's motion, the Second Department found that where plaintiff had offered a reasonable excuse and a meritorious claim, plaintiff should have been granted an extension. None of the cases cited by plaintiffs provide any support for a delay of 13 years grounded in law office failure as being a reasonable excuse. [*5]

Plaintiffs have also failed to provide an affidavit/certificate of merit, and plaintiffs have failed to demonstrate that defendant will not be prejudiced by such delay.

Equitable Doctrine of Laches

The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. Skrodelis v. Norbergs, 272 AD2d 316, 707 NYS2d 197 (2d Dept. 2000) citing to Matter of Barabash, 31 NY2d 76, 334 NYS2d 890, 286 NE2d 268 (NY 1972); Dante . 310 Assoc., 121 AD2d 332, 503 NYS2d 786 (1st Dept. 1986).Defendant contends that plaintiffs' case must be dismissed due to the equitable doctrine of laches. The delay in this case has allegedly prejudiced defendant who contends that based on standard Department of Education record retention policies, it is extremely unlikely that relevant documents could be located at this point, or witnesses either. Further, if any witnesses are located it is unlikely that they will have a useful memory of the incident or time period in question. It is also unlikely that any hospital or medical records could be obtained fro the providers at this point, since many retention policies are less than the 16 years that have now elapsed in this case. The Court finds that defendant has established irreparable prejudice which the doctrine of laches is intended to address. Rosenstrauss v. Women's Imaging Center of Orange County, 56 AD3d 454, 866 NYS2d 759 (2nd Dept., 2008). "The doctrine of laches bars recovery where a party's inaction has prejudiced another party, making it inequitable to permit recovery." First Nationwide Bank v. Calano, 223 A..D. 2d 524, 636 NYS2d 122 (2d Dept. 1996). " The essential element of the equitable defense of laches is delay prejudicial to the opposing party." See, Matter of Barabash, 31 NY2d 76, 334 N.Y.S 2d 890, 286 NE2d 268 (New York, 1972).Conclusion

Based upon the foregoing, plaintiffs' motion to restore this matter to the pre-Note of Issue status is hereby granted. That part of plaintiffs' motion seeking to set this matter down for a Preliminary Conference is denied in its entirety.

Defendant City of New York's motion to dismiss plaintiff's complaint pursuant to 22 NYCRR §202.27 is hereby granted. Plaintiffs' failed to appear at a status conference and subsequently failed to move to restore within a reasonable time thereafter. Plaintiffs lacked a reasonable excuse for a [*6]delay of over 13 years , and failed to offer an affidavit of merit. Moreover, pursuant to the doctrine of laches defendant's motion to dismiss must be granted. Defendant's motion to restore this matter to active status is denied as moot.

Date: November 18, 2009______________________________RICHARD VELASQUEZ, J.S.C.