Beaugene v. Duo-Fast Corp.

Appellate Division of the Supreme Court of New York

Beaugene v. Duo-Fast Corp.

206 A.D.2d 971, 616 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 7687

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 1994

StatusPublished

Cited by2 cases

This text of 206 A.D.2d 971 (Beaugene v. Duo-Fast Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Beaugene v. Duo-Fast Corp., 206 A.D.2d 971, 616 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 7687 (N.Y. Ct. App. 1994).

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Opinion

Order unanimously reversed on the law with costs, motion granted and complaint reinstated. Memorandum: Supreme Court improvidently exercised its discretion in denying plaintiffs motion to restore the action to the trial calendar (see, CPLR 3404) and in dismissing the complaint. ”[T]he failure to timely restore the case to the trial calendar creates only a presumption of abandonment, which may be rebutted by a conclusive showing that the party had no intention of abandoning the action (see, Marco v Sachs, 10 NY2d 542; McShan v Dilbert’s Quality Supermarkets, 33 AD2d 792)” (Fiorello v South Shore Dental Assocs., 203 AD2d 323, 324). The record establishes that plaintiff never intended to abandon the action. (Appeal from Order of Supreme Court, Kings County, Dowd, J.—Restore to Calendar.) Present— Green, J. P., Balio, Fallon, Callahan and Davis, JJ.

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Order unanimously reversed on the law with costs, motion granted and complaint reinstated. Memorandum: Supreme Court improvidently exercised its discretion in denying plaintiffs motion to restore the action to the trial calendar (see, CPLR 3404) and in dismissing the complaint. ”[T]he failure to timely restore the case to the trial calendar creates only a presumption of abandonment, which may be rebutted by a conclusive showing that the party had no intention of abandoning the action (see, Marco v Sachs, 10 NY2d 542; McShan v Dilbert’s Quality Supermarkets, 33 AD2d 792)” (Fiorello v South Shore Dental Assocs., 203 AD2d 323, 324). The record establishes that plaintiff never intended to abandon the action. (Appeal from Order of Supreme Court, Kings County, Dowd, J.—Restore to Calendar.) Present— Green, J. P., Balio, Fallon, Callahan and Davis, JJ.

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Bluebook (online)

206 A.D.2d 971, 616 N.Y.S.2d 287, 1994 N.Y. App. Div. LEXIS 7687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beaugene-v-duo-fast-corp-nyappdiv-1994.

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