WALLER v. CRAWFORD (2004)

Appeal by plaintiff from an order of the Civil Court, Queens County (A.Gazzara, J.), entered on October 20, 2003, which denied his motion to restore the action to the calendar.

Order unanimously reversed without costs and plaintiff's motion to restore the action to the trial calendar granted on condition that plaintiff file a notice of trial within 30 days of the date of the order hereon;  otherwise order affirmed without costs.

Plaintiff instituted this action to recover damages for personal injuries sustained in an automobile accident.   The record establishes that the action had been placed on the trial calendar.   Thereafter, defendant's motion for summary judgment was granted.

 However, said motion for summary judgment was subsequently vacated upon reconsideration by the court below.   Whereas the Uniform Civil Rules for the New York City Civil Court (22 NYCRR) § 208.17 is silent as to the procedures to be followed in order to have the action placed once again on the trial calendar after an order granting defendant's motion for summary judgment dismissing the action has been vacated, plaintiff should have diligently filed a new notice of trial to restore the action to the trial calendar.   However, in the absence of any prejudice to defendant, plaintiff's motion to restore the action to the calendar is granted.