In the case of A. v. F, A. filed a lawsuit against F., back in November 2016. seeking to recover damages for conversion, but that case was dismissed on March 22, 2022, before a note of issue was filed.
When A. later moved to vacate the dismissal and restore the case to the active calendar in May 2022, the Kings County Supreme Court denied that request.
On appeal, the Appellate Division, Second Department, noted that the lower court had abused its discretion by denying A’s motion, because no statutory 90-day notice [pursuant to CPLR 3216] and no order directing dismissal [pursuant to 22 NYCRR 202.27] had issued in the case.
Given those facts, the AD2 thought the dispute needed to be “automatically restored” to the active calendar, without any need for A. to show “a reasonable excuse for the delay,” or that he had not been engaged in any “dilatory conduct.”
As a result, the appellate court restored the case to the active calendar, and allowed the lawsuit to proceed.
Think they’ll finally notice that?
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DECISION