Unfortunately, it happens, your case gets marked off the trial calendar. Even worse, it happened through no fault of your own. How so? Your action was consolidated with other cases, and while you have been timely complying with adversary demands and court orders, the other plaintiffs are no so diligent. The result – the note of issue is vacated and all the consolidated cases are marked off the calendar as a result of the other plaintiffs’ failure to comply with orders and/or reply to demands.
So what’s next? How do you get the case restored to the trial calendar? In our particular case, the matter was venued in Queens. Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored. The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar. The substance of the stipulation states that 1. all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.
In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.
First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules. Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful. In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.
Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case. Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006). Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic. Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).
Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar. When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters. Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay? These two examples can demonstrate prejudice in support of severance.
While restoring a matter to the calendar can be tedious, it is necessary to move the case forward. Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.
Thank you for taking the time to read our blog.