VILLOTA v. LIN (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Hua Mei Lin and Su Yu Lin appeal, the defendant N.Y. Drilling, Inc., separately appeals, and the defendant COS Construction, Inc., separately appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 21, 2023.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was to restore the action to the active calendar.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

In May 2018, the plaintiff commenced this action to recover damages for personal injuries.  On July 19, 2022, after a compliance conference at which an appearance by the parties was not required, the Compliance Conference Part marked the action “disposed,” but no order directing dismissal of the complaint was entered.  In July 2023, the plaintiff moved, inter alia, to restore the action to the active calendar.  In an order dated July 21, 2023, the Supreme Court, among other things, granted that branch of the plaintiff's motion.  The defendants Hua Mei Lin and Su Yu Lin, N.Y. Drilling, Inc., and COS Construction, Inc. (hereinafter collectively the defendants), separately appeal.

The Supreme Court properly granted that branch of the plaintiff's motion which was to restore the action to the active calendar without the plaintiff being required to demonstrate a reasonable excuse for a purported default or a meritorious cause of action (see Onewest Bank FSB v. Arecy, 189 A.D.3d 1440, 134 N.Y.S.3d 744;  Federal Natl. Mtge. Assn. v. Brottman, 173 A.D.3d 1139, 1141, 105 N.Y.S.3d 487).  There was no default in appearing at the compliance conference.  Further, since this action was pre-note of issue when it was marked disposed, it could not be properly marked off the calendar pursuant to CPLR 3404, and the plaintiff was not required to move to restore the action to the calendar within any specified period of time (see Fifth Third Mtge. Co. v. Schiro, 210 A.D.3d 953, 179 N.Y.S.3d 685).  In any event, the plaintiff did proceed within one year.

Further, there was no 90–day notice pursuant to CPLR 3216, and there was no order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 (see Santiago v. City of New York, 206 A.D.3d 948, 950, 170 N.Y.S.3d 600).

The defendants’ remaining contentions are either without merit or not properly before this Court.

BARROS, J.P., FORD, LOVE and HOM, JJ., concur.