[*1]
Dibetta v Silberberg
2010 NY Slip Op 51156(U) [28 Misc 3d 1205(A)]
Decided on July 6, 2010
Supreme Court, Richmond County
Minardo, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2010
Supreme Court, Richmond County


Peter Dibetta, JUNE DIBETTA, AS HIS WIFE, RICHARD COPPOLA AND CAROLYN COPPOLA, AS HIS WIFE, Plaintiff,

against

Penny Silberberg AND NEW CROWN REALTY CO. LLC, Defendants.




10941-04

Philip G. Minardo, J.



Plaintiffs PETER DIBETTA and JUNE DIBETTA move to restore this action to the active trial calendar for a trial on damages. Pursuant to CPLR § 3404, defendants PENNY SILBERBERG and NEW CROWN REALTY CO., LLC, cross-move to dismiss the plaintiffs' complaint for plaintiffs' failure to restore this case to the active trial calendar within one (1) year of the case having been marked off.

Plaintiffs commenced this action to recover damages for personal injuries sustained as a result of an automobile accident that occurred on May 15, 2002. Plaintiff PETER DIBETTA contends that on the date of accident, he was in the course of his employment for the New York City Department of Transportation. At such time, he was sitting in a stopped Department of

Transportation vehicle when the vehicle was struck in the rear by a vehicle being operated by the defendant, PENNY SILBERBERG.

As a result of the incident, the plaintiff PETER DIBETTA sustained serious personal injuries including, inter alia, L3-L4, L5-S1, T10-T11, and T12-L1 disc herniations that required lumbar surgery. The plaintiff also sustained injuries to his neck, left shoulder, bilateral elbows and bilateral legs, and he indicates that he has been unable to return to work since the accident. The plaintiff also underwent an additional surgery on September 18, 2008, at The Brooklyn Hospital Center, which consisted of Percutaneous Discectomy at L2-L3, L3-L4, and L4-L5. The plaintiff JUNE DIBETTA claims loss of services and consortium of her husband.

Plaintiff commenced this action on or about March 25, 2004 by filing a Summons and Verified Complaint on defendants. Defendants filed an Answer on or about June 22, 2004. A preliminary conference was held on July 11, 2006. The deposition of the plaintiff PETER DIBETTA was held on August 23, 2006, and the deposition of the plaintiff JUNE DIBETTA was held on January 17, 2007. The deposition of the defendant PENNY SILBERBERG was held on October 11, 2006. Plaintiffs filed their Note of Issue and Certificate of Readiness for Trial on or about May 14, 2007. Thereafter, plaintiff's former counsel, AMEDURI, GALANTE, FRISCIA & CURRY, moved for partial summary judgment on the issue of liability, which was granted on May 15, 2007. This action was put on the court's jury trial trial calendar, and on May 27, 2008, was marked "off calendar" to allow plaintiffs to retain new counsel and to allow

plaintiff, PETER DIBETTA, to undergo further surgeries. Plaintiff PETER DIBETTA retained the [*2]office of Frank J. Santo, P.C. on or about June 30, 2008.

Defendants contend that pursuant to CPLR § 3404, when a motion to restore is made in excess of one (1) year of being marked off by the court, it must be accompanied by an affidavit of merit, a reasonable excuse for delay, and there must not be prejudice to the defendants. (Cruz v. Volkswagen of America, Inc., 277 AD2d 340, 716 NYS2d 104 [2d Dept. 2000]); (Mauro v. Techni-Plate, Inc., et al., 96 AD2d 835, NYS2d 835 [2d Dept. 1983]). Defendants contend that plaintiffs' affidavit is self-serving and insufficient to demonstrate a meritorious claim. Defendants also contend that since plaintiff's file was turned over to new counsel over fourteen (14) months ago, there is no excuse for plaintiff's delay in restoring this action. Defendants argue that the case was marked off the calendar on May 22, 2008, and that the plaintiffs did not take any steps to restore this matter to the active calendar until the filing of plaintiffs' motion to restore, originally returnable on September 17, 2009. Defendants argue that they would be prejudiced should this case be restored to the jury trial calendar because of the delay in prosecuting this case. However, defendants argue that should this case be restored to the active trial calendar, they should be given the opportunity to obtain discovery that remains outstanding, including further independent physical examinations of plaintiff, PETER DIBETTA.CPLR § 3404 states "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."

"It is well settled that once an action has been dismissed under CPLR 3404, a motion to open the default will require the same kind of proof of merit as must be shown to open a default judgment." (Condro v. Jhaveri, 154 AD2d 646, 546 NYS2d 652 [2d Dept. 1989].) The


plaintiff must offer a satisfactory excuse for failing to restore the action within one year of being marked "off" as well as demonstrating the merits of his claim. (Quick-way Excavators, Inc. v. D.H. Overmyer Co., 44 AD2d 740, 354 NYS2d 468 [3d Dept. 1974].) Plaintiff's affidavit in support of their motion must provide evidence to support their claim of negligence. (Vargas v. Flatbush Pest Control Inc., 178 AD2d 528, 577 NYS2d 448 [2d Dept. 1991].) Plaintiff must set forth specific evidentiary facts indicating the merits of his claim and the reasons his case should be restored. (Terranova v. Gallagher Truck Center, Inc., 121 AD2d 621, 503 NYS2d 650 [2d Dept. 1986].) "A party seeking to restore a case which has been dismissed pursuant to CPLR 3404 must demonstrate a reasonable excuse for the delay, the existence of a meritorious cause of action, an absence of intent to abandon the action, and lack of prejudice to the nonmoving party. All four components of the test must be satisfied for the dismissal to be properly vacated." (Lafata v. 712 Fifth Ave. Assoc., 238 AD2d 552, 657 N.Y.S. 947 [1997] quoting Pellegrino v. St. Agnes Hosp., 216 AD2d 447; Roland v Napolitano, 209 AD2d 501; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). The court may exercise its discretion in determining if plaintiff's excuse is satisfactory. (Van Sant v. Hall, 95 AD2d 919, 464 NYS2d 47 [3d Dept. 1983]). If a lengthy amount of time has passed since the date of the initial accident, the court will be reluctant to restore the case, absent a reasonable excuse by the parties. (Tate v. Peninsular Hosp. Ctr., 255 AD2d 503, 680 NYS2d 609 [2d Dept. 1998]).

Here, the automobile accident occurred on May 15, 2002, and plaintiffs filed suit on March[*3]25, 2004. Plaintiffs served their bill of particulars on July 31, 2006. The deposition of PETER DIBETTA was held on August 23, 2006, the deposition of JUNE DIBETTA was held on January 17, 2007, and the deposition of defendant, Penny Silberberg was held on October 11,

2006. Plaintiffs' supplemental bill of particulars was exchanged on or about June 22, 2009, wherein plaintiff PETER DIBETTA submits that he underwent an additional surgery on September 18, 2008 at The Brooklyn Hospital Center, which consisted of Percutaneous Discectomy at L2-L3, L3-L4, and L4-L5. Similarly, plaintiff appeared for a re-examination by defendants' orthopedic surgeon Dr. Robert Israel on November 4, 2008. He also appeared for re-evaluation with defendants' neurologist, Maria Adrie DeJesus on November 13, 2008. On or about January 29, 2009, the defendants served plaintiffs' attorney the Notice of Exchange of the physical examination of the plaintiff performed by Dr. Robert Israel. On or about February 2, 2009, the defendants served a copy of the Notice of Exchange of the neurological re-examination report of Maria Audrie DeJesus. On or about Mark 9, 2009, the defendants served an addendum to the report of Robert Israel. On or about April 28, 2009, defendants requested a response to their Supplemental Notice for Discovery and Inspection. On May 8, 2009, plaintiff provided authorizations to the defendant and on June 22, 2009, plaintiff served a supplemental bill of particulars on the defendants with regard to plaintiff's surgery. On or about August 5, 2009, defendants served plaintiffs' attorney with a copy of the surveillance video and copies of

photographs. It is apparent that the parties have continued to actively prosecute this matter even after the case was marked "off calendar." Furthermore, plaintiffs' affidavit sets forth enough facts to demonstrate the merits of their case and the need to restore it to the active trial calendar, and it being this state's policy to try cases on the merits. Moreover, the defendant has not articulated any prejudice from the almost two (2) year delay in prosecuting this case. The mere passage of time does not establish prejudice. (See Muriel v. St. Barnabas Hospital, 3 AD3d 419 [1st Dep't. 2004].)

Accordingly, the plaintiffs' motion to restore the action to the active jury calendar is granted. The defendant's cross motion to dismiss this case as abandoned is denied. This matter shall be restored to the jury coordination calendar for selection of jurors on July 22, 2010 at 9:30 am.

This shall constitute the decision and order of the court.

Clerk to notify both sides.

ENTER

s/ Philip G. Minardo

J.S.C.

Dated: July 6, 2010