Dame v. Feinman , 521 N.Y.S.2d 400 ( 1987 )

— In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Gagliardi, J.), dated September 6, 1985, which denied his motion to restore the action to the Trial Calendar.

Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Orange County, for findings with respect to the facts concerning the striking of the case from the Trial Calendar, and whether or not the plaintiff made a prior timely and meritorious motion to restore, and for a new determination based thereon.

It is impossible to ascertain, on the record before us, whether the court properly determined that the plaintiff’s restoration motion was untimely in that it was not made within one year of the dismissal of the action from the Trial Calendar. There is evidence that the record subpoenaed by the plaintiff, who is acting pro se, is incomplete and that the plaintiff originally moved to restore the action to the Trial Calendar in July 1984, which motion was thereafter lost or mislaid in the court files.

In view of the lack of any intent to abandon the action and the fact that the plaintiff is proceeding pro se, the matter is remitted for a new determination which shall set forth the background facts concerning the striking of the case from the Trial Calendar and a finding of whether or not the plaintiff made a timely and meritorious prior motion to restore. Niehoff, J. P., Weinstein, Eiber and Harwood, JJ., concur.