# Basetti v. Nour > Appellate Division of the Supreme Court of the State of New York · October 1, 2001 · 287 A.D.2d 126 URL: https://www.frixlaw.com/law-library/cases/6078268 ## Case - **Full name:** Naryan Basetti v. Mohamed K. Nour - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** October 1, 2001 - **Citations:** 287 A.D.2d 126; 731 N.Y.S.2d 35; 2001 N.Y. App. Div. LEXIS 9264 - **Precedential status:** Published - **Opinion:** Dissent by Ritter - **Judges:** Feuerstein, Ritter - **Cited by:** 119 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6078268 ## Opinion text Ritter, J. (dissenting). Since the 1950’s only trial-ready cases have been permitted to be placed on the trial calendar. The focus of my dissent is that by today’s ruling we are permitting the restoration of a 10-year-old medical malpractice case to the trial calendar that is not trial ready. My colleagues in the majority construe CPLR 3404 to require the court to permit restoration of a case to the trial calendar without requiring trial readiness, provided that restoration is sought within a year from the case being marked “off.” I do not believe that either the history or language of CPLR 3404 requires such a result. Thus, I would affirm the Supreme Court’s exercise of its discretion in denying restoration. Trial readiness rules, which require a statement that the case is actually trial ready as a condition of placing it on the trial calendar, were first adopted in the 1950’s upon the recommendation of the Judicial Conference (see, 2nd Ann Report of NY Jud Conf [1957]). The Conference, noting the then “common and almost automatic practice of attorneys in filing trial notes of issue” when in fact there had been “little preparation, examination or exploration of the case,” sought to ensure that only trial ready cases were placed on the trial calendar in order to curtail the delays and calendar breaks that inevitably resulted from last minute adjournment requests to “conduct examinations before trial, to secure bills of particulars, to make motions, [and] to discuss settlement” (2nd Ann Report of NY *136 Jud Conf, at 24 [1957]; see also, Najjar v National Kinney Corp., 89 AD2d 845 ; 7 Weinstein-Korn-Miller, NY Civ Prac ¶ 3402.10). Currently, trial readiness rules are set forth in 22 NYCRR 202.21. The multiple benefits of such rules are apparent. As the volume of trial cases continues to grow, thp courts can ill afford to waste judicial resources on scheduling cases on the trial calendar for jury selection when there is no prospect of that occurring. The interplay between this long standing policy and the enforcement of CPLR 3404 is at the heart of today’s decision. In 1942, the Council recommended a new rule 302 of the Rules of Civil Practice (the predecessor to CPLR 3404) to permit “particularly the clerks in those upstate counties having a large number of moribund cases * * * to clear dead wood from the calendars” (8th Ann Report of NY Jud Council, at 384 [1942]). Those days were far removed from today’s initiatives under the Individual Assignment System (hereinafter IAS), which permit the courts to deal with growing case loads by managing cases to trial readiness. Indeed, CPLR 3404 was intended to remedy a problem that should no longer exist under the IAS, i.e., abandoned cases languishing on court calendars indefinitely due to a lack of proper oversight. Further, I agree with my colleagues that CPLR 3404 has been applied in situations better addressed by the more exacting and appropriate statutes and court rules identified by the majority and in this Court’s opinion in Lopez v Imperial Delivery Serv. ( 282 AD2d 190 ). In fact, CPLR 3404 would appear a compelling candidate for repeal, and the entire area of pretrial delay, now dealt with in a patchwork of statutes and court rules, would no doubt benefit from review and unification. However, as long as CPLR 3404 remains in force, it should be interpreted in a manner consistent with the purpose underlying the IAS, i.e., to give trial courts greater control over the cases assigned to them so that they may be moved expeditiously and fairly to resolution (see, Lopez v Imperial Delivery Serv., supra). I do not believe that any legitimate purpose is served by depriving a trial court of the discretion to deny a motion for restoration pursuant to CPLR 3404 if the motion is made within one year of the case having been marked “off” or struck from the trial calendar. An interpretation of CPLR 3404 which would, in effect, permit a party to obtain a one-year delay merely for the asking should not be permitted. Rather, for the restoration of the case to the trial calendar to be meaningful and appropriate, the moving *137 party, at a minimum, should be required to demonstrate that the case is trial ready. Further, the trial court should retain oversight and control over a case marked “off” or struck from the trial calendar and take any appropriate action to ensure that the case will be trial ready when restored, including, inter alia, scheduling further conferences, considering any additional motions, and issuing any appropriate orders as to further disclosure. Here, in support of the plaintiffs’ motion to restore, newly-retained counsel candidly admitted that, at the time the motion was made, he had not even read the case file. Thus, there could not have been a proper representation that the case was trial ready. Rather, all indications were to the contrary. As noted by the majority, at the time the plaintiffs’ motion was denied, the case had been pending for almost 10 years and had apparently been called in by the trial assignment part on eight prior occasions before it was marked “off” to permit the plaintiffs to secure replacement counsel. Accordingly, I would find that the trial court providently exercised its discretion in denying the plaintiffs’ motion for restoration and would affirm the order appealed from. Bracken, P. J., and Goldstein, J., concur with Feuerstein, J.; Ritter, J., dissents and votes to affirm the order in a separate opinion. Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the cross motions are denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6078268. Public record. Not legal advice.