179 MacDougal Equities, Inc. v. North Realty Co.

232 A.D.2d 280, 648 N.Y.S.2d 551, 1996 N.Y. App. Div. LEXIS 10366

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered March 30, 1995, which denied plaintiffs’ motion to vacate a CPLR 3404 dismissal of the action and to restore it to the calendar, unanimously affirmed, without costs.

The motion to restore was properly denied in the absence of a showing of activity during the year following the striking of the action from the calendar indicative of plaintiffs’ intent not to abandon the action (CPLR 3404; see, Curtin v Grand Union Co., 124 AD2d 918, 919). Indeed, there does not appear to have been any activity for a period of some three and a half years following the striking of the action from the calendar. Plaintiffs’ excuse that their attorney did not know that the case had been struck until she attempted to file a note of issue does not explain the three-year delay in filing the note of issue after disclosure had been completed. Concur—Rosenberger, J. P., Kupferman, Nardelli, Tom and Mazzarelli, JJ.