LLC v. EJ (2024)

Per Curiam.

Order (Evon M. Asforis, J.), entered April 29, 2024, insofar as appealed from, affirmed, with $10 costs.

Landlord commenced this nonpayment proceeding in August 2012. Pursuant to a September 2013 written stipulation, the matter was marked off the calendar "pending [landlord's] appeal" from a January 29, 2013 interlocutory order of Civil Court. That appeal was decided on February 27, 2014 (see Clermont York Assoc. LLC v Zgodny, 42 Misc 3d 143[A], 2014 NY Slip Op 50257[U] [App Term, 1st Dept 2014]). However, no further proceedings were taken in this matter until landlord moved to restore the matter to the calendar in February 2023.

Courts have discretion to grant a restoration motion brought more than one year after a case is stricken from the calendar provided the movant demonstrates: (a) the merits of the claim; (b) a lack of prejudice to the opposing party; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Here, landlord, who brought the motion to restore more than nine years after the proceeding was marked off the calendar, failed to make the requisite showing of a reasonable excuse for its lengthy delay (see Fair Price Med. Supply, Inc. v GEICO Ins. Co., 26 Misc 3d 133[A], 2010 NY Slip Op 50120[U] [App Term, 1st Dept 2010]). Even assuming, arguendo, that landlord satisfied the remaining criteria and reasonably declined to prosecute this proceeding earlier based upon a pending class action lawsuit against it by various tenants in the building that implicated issues in this proceeding, landlord failed to adequately explain its two and one-half year delay in seeking to restore the proceeding after the class action, which tenant opted out of, had been settled in August 2020 (see Williams v A & S Dept. Store, 5 Misc 3d 140[A], 2004 NY Slip Op 51665[U] [App Term, 1st Dept 2004]). Thus, we find no abuse of discretion in the denial of landlord's motion.

In view of the foregoing, we reach no other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: December 24, 2024