LONG WAITHE v. KINGS APPAREL INC

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

Lisa LONG-WAITHE, appellant, v. KINGS APPAREL INC., et al., respondents.

Decided: August 16, 2004

FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Gary E. Rosenberg, P.C., Forest Hills, N.Y. (Susan R. Nudelman of counsel), for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated September 10, 2003, which denied her motion to restore the action to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the trial calendar.

The plaintiff moved to restore the action to the trial calendar more than one year after it was erroneously marked “settled.”   Since the case was marked “settled” and not marked off the calendar pursuant to CPLR 3404 (see Baez v. Kayantas, 298 A.D.2d 416, 748 N.Y.S.2d 389), the plaintiff was not obligated to demonstrate a reasonable excuse, meritorious action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the calendar (cf. Basetti v. Nour, 287 A.D.2d 126, 731 N.Y.S.2d 35).   Nevertheless, the Supreme Court denied the motion based upon the plaintiff's failure to meet such criteria.   This was error (see Baez v. Kayantas, supra ).   Accordingly, the motion should have been granted and the matter restored to the trial calendar.

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