Case Dismissed for Failure to Prosecute

Landlord sued to evict tenant for nonprimary residence. On the scheduled day of trial, landlord asked the court to mark the case off the court's calendar. The court did so. A year later landlord asked that the case be restored to the calendar. Again on the trial date, landlord asked that the case be marked off the calendar. Six months later tenant asked the court to dismiss the case because landlord hadn't prosecuted. The court and appeals court ruled against tenant, and tenant appealed again. The appeals court ruled for tenant. New York City Civil Court rules state that either side can restore a case to the calendar at any time within one year from the date a case is marked off. So the trial court should have dismissed the case when landlord wasn't ready to proceed when it restored the case to the calendar after a year.

Centennial Restorations Co. v. Wyatt: NYLJ, p. 26, col. 1 (3/16/98) (App. Div. 1 Dept.; Rosenberger, JP, Ellerin, Nardelli, Rubin, JJ)