Summary
This Appellate Division decision addresses whether the Supreme Court properly granted a motion to restore a mortgage foreclosure action to the active calendar after it had been marked inactive due to the plaintiff's failure to appear at a status conference. The court held that because the action was removed from the calendar before a note of issue was filed, it was never formally dismissed under applicable rules, making restoration automatic without requiring a showing of reasonable excuse or excusing dilatory conduct. Consequently, the doctrine of laches did not apply, and the lower court's order restoring the case was affirmed.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court properly granted the motion to restore an inactive action that was never formally dismissed.
- Whether the doctrine of laches bars restoration of the action.
- Whether CPLR 3404 and 22 NYCRR 202.27 apply to an action marked inactive before a note of issue.
Holdings
- A motion to restore a case marked "inactive" is granted automatically when the case was never formally dismissed.
- The doctrine of laches does not apply because there was no service of a 90‑day demand under CPLR 3216(b).
Key quotations
“"restoring a case marked 'inactive' is automatic"” (620)
“"the case could not have been marked off the calendar pursuant to CPLR 3404"” (1036-1037)
Factual background
Greenpoint Bank sought to foreclose a mortgage on a Brooklyn residential property. The borrower was substituted by Theresa Bavaro as administrator of the estate. The case was marked inactive before a note of issue was filed and was never formally dismissed. The successor in interest moved to restore the case to the calendar.
Procedural history
The plaintiff filed a foreclosure action in May 2004. The action was marked inactive after the plaintiff failed to appear at a status conference in 2006 but was never formally dismissed. In January 2023, non‑party 171 Girard Notebuyer, LLC, as successor to the plaintiff, moved to restore the action. The Supreme Court, Kings County, granted that motion on March 21, 2023. The appellant appealed that order.