Chambers v City of New York
2013 NY Slip Op 07147 [111 AD3d 593]
November 6, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 25, 2013


Aldawna Delroy Chambers, Appellant,
v
City of New York et al., Defendants.

[*1] Parker Waichman, LLP, Port Washington, N.Y. (Jay L. T. Breakstone of counsel), for appellant.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered November 16, 2011, which denied, without prejudice, his unopposed motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion to restore the action to the trial calendar is granted.

It is undisputed that the action was marked off the trial calendar on December 1, 2010. By electing to mark the case off the trial calendar pursuant to CPLR 3404, the trial court set the course for restoration (see Basetti v Nour, 287 AD2d 126, 135 [2001]). Since the plaintiff moved to restore the action to the trial calendar within one year after the date it was marked off, restoration was automatic (see Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d 370, 371 [2008]; Kohn v Citigroup, Inc., 29 AD3d 530, 532 [2006]; Hirsch v Monroe Bus Corp., 24 AD3d 609 [2005]). Accordingly, the plaintiff's motion to restore the action to the trial calendar should have been granted. Mastro, J.P., Balkin, Sgroi and Hinds-Radix, JJ., concur.