BENITEZ v. CITY OF NEW YORK (2003)

Supreme Court, Appellate Division, First Department, New York.

Julio BENITEZ, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant,
Leemilt's Petroleum Inc., et al., Defendants-Respondents. Leemilt's Petroleum Inc., et al., Third-Party Plaintiffs-Respondents, v. Miguel Rosa, Third-Party Defendant-Respondent.

Decided: December 18, 2003

NARDELLI, J.P., TOM, ANDRIAS, ROSENBERGER, FRIEDMAN, JJ.

Jeffrey B. Melcer, for Plaintiff-Appellant. Robert G. DelGadio, Lawrence R. Miles, for Defendants-Respondents. Robert G. DelGadio, for Third-Party Plaintiffs-Respondents. Lawrence R. Miles, for Third-Party Defendant-Respondent.

Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about November 27, 2002, which denied plaintiff's motion to restore his action to the pre-trial calendar, inter alia, unanimously affirmed, without costs.

Plaintiff's personal injury action was dismissed by order of Justice Braun in March 1998, on the erroneous impression that the action had been marked off the calendar in June 1994 and abandoned, when in fact it had been restored to the calendar by order of Justice Solomon in September 1997. The remedy for that error was a timely motion for reargument (CPLR 2221), a timely appeal (CPLR 5513), or a timely motion to be relieved of default (CPLR 5015[a] [1] ). Plaintiff did none of these. Justice Braun's dismissal order has become final. Plaintiff has failed to present valid grounds for reviving this action at this late date.

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