CITY OF NEW YORK v. BEST YET LIMO SERVICE CORPORATION (2019)

In accordance with the recitation requirements of Rule 2219 [a] of the Civil Practice Law and Rules (“CPLR”), the Court considered: (1) petitioner-licensor the City of New York's (the “Petitioner”) motion to restore the case to calendar and attached affidavit and exhibits; and (2) respondent-licensee Best Yet Limo Service Corporation's (the “Respondent”) affirmation in opposition to said motion. Petitioner's motion is denied as discussed below.

In this commercial nonpayment proceeding, Petitioner filed its petition on October 11, 2018. In turn, Respondent filed its answer on or about December 18, 2018. The case first appeared on the Court's calendar on December 27, 2018, however, the Court dismissed the case based on Petitioner's failure to appear on such date. On January 16, 2019, Petitioner served the Respondent with a motion to restore the case to the calendar pursuant to 22 NYCRR 208.14(c). However, Plaintiff did not move to vacate the dismissal. In turn, on January 29, 2019, Respondent served Petitioner with an affirmation in opposition to said motion. On March 28, 2019, the Court held a conference with the parties on Petitioner's motion to restore the case to the calendar.

Petitioner's motion to restore this case to the calendar pursuant to 22 NYCRR 208.14(c) does not apply because this matter was dismissed based on Petitioner's failure to appear (see 22 NYCRR 208.14 [c]; Nance v. Fleet Bank, 2002 NY Slip Op 50601 [U], *1 [App Term, 2d & 11th Jud Dists 2002] (“The instant case was dismissed with prejudice as a result of plaintiff's failure to appear[;] [t]hus, restoration of the case to calendar pursuant to 22 NYCRR 208.14[c] does not apply [and] [t]his is a default which could only have been vacated pursuant to CPLR 5015 by establishing a reasonable excuse for the default and a meritorious claim”); V.S. Med. Services, P.C. v. Travelers Ins. Co., 884 NYS2d 554, 556 [App Term, 2d Dept, 11th & 13th Jud Dists 2009] (denying plaintiff's CPLR 5015 motion to vacate a dismissal based on plaintiff's lack of readiness and finding that plaintiff's sole explanation for default that plaintiff's counsel's office failed to calendar the trial date is insufficient to constitute a reasonable excuse). Petitioner should have instead moved to vacate the dismissal pursuant to CPLR 5015(a), but failed to do so (see CPLR 5015 [a]; CPLR 2214 [a] ). Accordingly, Petitioner's motion is denied as it is procedurally defective, but Petitioner may properly file a motion to vacate on a later date.

This is the decision and order of the Court.

John C.V. Katsanos, J.