| Ford v City of New York |
| 2016 NY Slip Op 00007 |
| Decided on January 5, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 5, 2016
Friedman, J.P., Sweeny, Saxe, Moskowitz, JJ.
16523 304128/09
v
The City of New York, Defendant-Appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan Popolow of counsel), for appellant.
Asher & Associates, P.C., New York (Robert J. Poblete of counsel), for respondent.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered July 28, 2014, which denied defendant's motion to dismiss the case as abandoned, and granted plaintiff's cross motion to restore the case to the calendar upon his payment to defendant of $600 in costs, unanimously affirmed, without costs.
The court providently exercised its discretion in granting plaintiff's cross motion to restore the case to the calendar more than one year after it had been marked off (see Kaufman v Bauer, 36 AD3d 481, 482 [1st Dept 2007]). Plaintiff showed a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the matter to the calendar, an absence of intent to abandon prosecution, and a lack of prejudice to defendant (see id.).
We note that defendant does not contest that plaintiff showed a potentially meritorious cause of action based on evidence that he broke his ankle after tripping on a broken sidewalk curb of which the City had prior written notice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 5, 2016
CLERK