JACKSON v. NEW YORK CITY AUTHORITY (1999)

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 14, 1998, which granted plaintiff's motion to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion court properly found a reasonable excuse for the delay in seeking restoration and no intent to abandon the action upon the basis of plaintiff's attorney's unrefuted representation that the case had been marked off the calendar by another Justice because of plaintiff's incarceration without prejudice to its restoration upon plaintiff's release.   Such circumstance, and the fact that disclosure had been completed before the action was marked off, warranted dispensing with the usual requirement of demonstrating some off-calendar litigation activity (see, e.g., Weiss v. City of New York, 247 A.D.2d 239, 241, 669 N.Y.S.2d 33).   Completion of disclosure was also sufficient to demonstrate, prima facie, lack of prejudice (compare, Jeffs v. Janessa, Inc., 226 A.D.2d 504, 641 N.Y.S.2d 75, lv. dismissed 88 N.Y.2d 1037, 651 N.Y.S.2d 11, 673 N.E.2d 1238), and appellant failed to demonstrate any prejudice arising from the delay.

MEMORANDUM DECISION.