SOUFER v. SHAYANI (1999)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about December 2, 1998, which, inter alia, granted plaintiff's motion to restore the action to the court's “active calendar”, unanimously affirmed, without costs.   The matter is remanded for further proceedings before a different Justice.

In the circumstances herein, the action was properly restored to the calendar.   Both sides were ready to proceed to trial some two years before but expressed a mutual preference not to because of almost certain prospects of a settlement.   The case should have been marked settled and thus not subject to further calendar calls, but was not due to clerical error.   Plaintiff's attorney represented that he did not receive notice of the calendar call at which time the case was marked off the calendar because of his failure to appear.   Meaningful efforts were made, both before and after the case had been marked off, to formalize the settlement that the parties represented had been reached and neither side claimed a need for additional disclosure but only for more time to prepare the case for trial.

MEMORANDUM DECISION.