Jackson v. New York City Housing Authority , 687 N.Y.S.2d 128 ( 1999 )

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 14, 1998, which granted plaintiffs motion to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion court properly found a reasonable excuse for the delay in seeking restoration and no intent to abandon the action upon the basis of plaintiffs attorney’s unrefuted representation that the case had been marked off the calendar by another Justice because of plaintiffs incarceration without prejudice to its restoration upon plaintiffs release. Such circumstance, and the fact that disclosure had been completed before the action was marked off, warranted dispensing with the usual requirement of demonstrating some off-calendar litigation activity (see, e.g., Weiss v City of New York, 247 AD2d 239, 241). Completion of disclosure was also sufficient to demonstrate, prima facie, lack of prejudice (compare, Jeffs v Janessa, Inc., 226 AD2d 504, lv dismissed 88 NY2d 1037), and appellant failed to demonstrate any prejudice arising from the delay. Concur — Ellerin, P. J., Lerner, Andrias and Saxe, JJ.