(a) Applicability. This section governs calendar defaults, restorations and dismissals, other than striking a case from the calendar pursuant to a motion under section 208.17 of this Part relating to the notice of trial and certificate of readiness.
(b) At any scheduled call of a calendar or at a pretrial conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge presiding may note the default on the record and enter an order as follows:
(1) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.
(2) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross- claims.
(3) If no party appears, the judge may strike the action from the calendar or make such other order as appears just.
(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.
(d) If an order of restoration is granted, it shall provide that a new notice of trial be filed forthwith and that the case be placed on the general trial calendar in its regular place as of the date of filing the new notice of trial, unless the court in its discretion orders otherwise. A copy of the order shall be served on the calendar clerk and the case shall receive a new calendar number followed by the letter “R” to designate the case as having been restored. Absent exceptional circumstances, if a restored case is not ready when reached, it shall forthwith be dismissed or an inquest or judgment ordered as provided in subdivision (b) of this section.
(e) Applications to restore an action to the ready calendar in the event of a reversal or a direction of a new trial by an appellate court, shall be made returnable in the appropriate motion part, except that if all parties do not appear by attorney, the clerk shall, without formal application, restore the action to the ready calendar.
(f) When an action has been tried and the jury has disagreed, or a verdict set aside, or there has been a mistrial for any reason, or if no decision has been made or judgment rendered within the time specified in the CPLR, or if the court has ordered a new trial under CPLR 4402, such action must be restored to the appropriate ready calendar for a day certain to be fixed by the court.
Historical Note
Sec. filed Jan. 9, 1986; amd. filed Nov. 12, 1998 eff. Nov. 5, 1998. Amended (d).