How to File a Motion to Restore to Calendar in New York

To file a motion to restore a case to the calendar in New York, you serve and file a notice of motion supported by an attorney affirmation, an affidavit of merit from someone with personal knowledge, and a proposed order, then pay the $45 motion fee through NYSCEF or at the county clerk’s office. What determines whether the motion succeeds is timing: within one year of the case being marked off, the standard is relatively forgiving; after one year, the case is deemed abandoned and you face a demanding four-part test to undo the dismissal.

Which Deadline Governs Your Motion

CPLR 3404 gives you one year from the date a case is marked off, struck, or left unanswered at a calendar call to restore it. If that year passes without action, the case is deemed abandoned and dismissed automatically for neglect to prosecute, with no order or motion from the other side required.¹

Everything about your motion turns on which side of that line you’re on. Before the year runs, you’re asking the court to put an existing case back on the schedule. After the year runs, you’re asking the court to vacate a dismissal, and the burden is considerably higher.

Restoring Within One Year

When the case was marked off recently, you’re on the easier side of CPLR 3404. If the case was struck because of a default at a pre-note conference under 22 NYCRR 202.27, courts generally apply the standard from CPLR 5015(a)(1): a reasonable excuse for failing to appear and a showing that the case has merit. Two elements, not four.²

Move quickly. Every month of additional delay makes the excuse harder to sell, and once the twelve-month mark passes the analysis changes entirely.

Restoring After the One-Year Deadline

Once the case has been deemed abandoned under CPLR 3404, courts apply the four-part test from Basetti v. Nour. You must establish all four elements:³

A reasonable excuse for failing to restore within the year. Courts expect you to account for the entire gap, not just part of it. Serious medical issues, an attorney’s unexpected departure, or documented law-firm administrative failures can qualify. Vague claims of being busy generally will not.
A meritorious cause of action, shown through facts rather than conclusory statements about the strength of your claims.
No intent to abandon the case. Settlement discussions, discovery exchanges, and correspondence during the dormant period all help; long stretches of silence cut against you.
No prejudice to the opposing party. Lost evidence, faded witness memories, or the death of a key witness during the delay can defeat the motion on this element alone.

The moving party bears the burden on every element, and failing on any one is enough for denial.

If the Court Struck Your Note of Issue

A different path applies when the court strikes a note of issue because the certificate of readiness was inaccurate or incomplete. Restoration in that situation runs through 22 CRR-NY 206.12(e). You submit a corrected certificate of readiness along with an affidavit from someone with firsthand knowledge covering three points: that the case has merit, what caused the note of issue to be struck, and why the case is now genuinely ready for trial.⁴ The emphasis on present readiness distinguishes this from a standard CPLR 3404 restoration: the court wants proof you’ve caught up, not just an explanation of why you fell behind.

What Goes in the Motion Package

Leaving out any of the following documents can sink an otherwise strong motion.

A notice of motion identifying the relief requested, the grounds, the return date, and the supporting papers, as required by CPLR 2214.⁵
An attorney affirmation walking through the case’s procedural history, how and when it was marked off, and each element of the applicable legal test. If a law-firm error caused the delay, this is where it belongs.
An affidavit of merit from the plaintiff or someone with personal knowledge of the underlying facts. The attorney’s word is not enough; the court needs an evidentiary basis to evaluate whether the claim deserves restoration.
A proposed order granting the motion, ready for the judge’s signature.

For a struck note of issue, add a corrected certificate of readiness establishing that the case is now trial-ready.⁴ Templates for standard motion documents are available on the New York State Unified Court System’s NYSCEF forms page. Fill in your index number, the court part, and the assigned judge’s name carefully.⁶

Serving and Filing the Motion

CPLR 2214 sets the service timing. The notice of motion and supporting papers must be served at least eight days before the return date. If you want to reserve the right to reply to opposing papers, serve at least sixteen days out and demand answering papers at least seven days before the return date; your reply is then due at least one day before.⁵

Service methods under CPLR 2103 include personal delivery, mail, overnight delivery, fax, and electronic service. Every party who has appeared must receive a copy. After service, file an affidavit of service with the court identifying who was served, when, where, and how. A missing or late affidavit of service is a routine reason for denial on procedural grounds.⁷

Filing itself goes through NYSCEF for most Supreme Court cases, and e-filing is mandatory in many counties absent a specific exemption.⁶ For courts or case types outside mandatory e-filing, paper filing goes to the county clerk. The motion or cross-motion filing fee in Supreme Court or County Court is $45.⁸ Many judges decide restoration motions on the papers, without oral argument, unless the court requests it.

What Happens If the Motion Is Denied

A denied post-one-year restoration motion leaves the CPLR 3404 dismissal in place, and the follow-on problem is often worse than the dismissal itself. CPLR 205(a)’s six-month savings provision, which normally lets plaintiffs refile after a case ends, specifically excludes dismissals for neglect to prosecute. A CPLR 3404 dismissal is exactly that kind of dismissal.⁹

If the underlying statute of limitations ran during the year the case sat inactive, refiling a new lawsuit is barred. The original action may have been filed well within the limitations period, but the clock kept running while the case sat on the inactive calendar. A meritorious claim can be lost this way for no reason other than the passage of time.

The remaining option is a motion under CPLR 5015(a) to vacate the dismissal. The most common ground is excusable default, which must be raised within one year of the dismissal entry and requires both a valid excuse and a showing of merit. Other grounds under the statute include fraud by the opposing party, lack of jurisdiction, and newly discovered evidence.¹⁰ These are narrow paths that courts read strictly. The reliable strategy is to track the CPLR 3404 one-year deadline from the day the case is marked off and file well before it expires.

1
New York State Senate. New York Civil Practice Law and Rules R3404 – Dismissal of Abandoned Cases
2
New York State Unified Court System. Supreme Court of the State of New York County of Bronx – Jinez v Deonarine
3
FindLaw. Basetti v Nour
4
New York Codes, Rules and Regulations. 22 CRR-NY 206.12 – Note of Issue and Certificate of Readiness
5
New York State Senate. New York Civil Practice Law and Rules R2214 – Motion Papers; Service; Time
6
New York State Unified Court System. NYSCEF Forms
7
New York State Senate. New York Civil Practice Law and Rules 2103 – Service of Papers
8
New York Courts. New York State Filing Fees
9
New York State Senate. New York Civil Practice Law and Rules 205 – Termination of Action
10
New York State Senate. New York Civil Practice Law and Rules R5015 – Relief From Judgment or Order