Or do they have to wait until the motion to restore is granted before being allowed to file anything else?
The case was marked off the calendar last fall, partly due to courthouse error (wrong law firm on the e-courts system after they substituted counsel), plus the plaintiff hasn’t filed anything in over a year.
I know I have the option to file a CPLR 3216 90-day notice demanding that they resume prosecution. I’m just trying to anticipate the timing before I will need to respond to a MSJ.
They could link the motions, but might end up having done unnecessary SJ work if the restoration is denied.
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There is no reason why you can't bring both motions. However, as my colleague notes, you run the risk of expending the time and resources for a summary judgment motion that may be moot because the case is not restored to the calendar.
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Both motions may be filed simultaneously and you would be wise to oppose both motions in a timely fashion.
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As the others have said, there is no reason why this cannot be done. However, ultimately, the path forward will be decided by the judge on the case. The judges have a great deal of discretion in how they will process cases and how to schedule motions. If your judge find one path more efficient or practical than another, that is what he or she will order.
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