Monday, April 9, 2007

Forum matters.

Plaintiff's personal injury action, commenced in Kings County Civil Court, was on the "ready for trial" calendar on May 31, 2001, but it was marked off after plaintiff failed to appear. Plaintiff never moved to restore and, in 2004, defendants to dismiss pursuant to CPLR 3404 for failure to prosecute. Defendants' motion was denied since, according to the Second Department in Chavez v. 407 Seventh Avenue Corp., decided on April 3, 2007, CPLR 3404 does not apply to actions in Civil Court. The Civil Court rule controlling actions stricken from the calendar is 22 NYCRR 208.14[c], which does not provide for dismissing an action for a failure to prosecute.