Cioffi v. Kennedy

Appellate Division of the Supreme Court of New York

Cioffi v. Kennedy

284 A.D.2d 491, 726 N.Y.S.2d 581, 2001 N.Y. App. Div. LEXIS 6830

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

DecidedJune 25, 2001

StatusPublished

Cited by3 cases

This text of 284 A.D.2d 491 (Cioffi v. Kennedy) 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.

Bluebook

Cioffi v. Kennedy, 284 A.D.2d 491, 726 N.Y.S.2d 581, 2001 N.Y. App. Div. LEXIS 6830 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, the defendant Blair Kennedy [492]*492appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated November 21, 2000, as granted that branch of the plaintiffs motion which was to restore the action to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the respondent was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see, CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see, Georgetown Mews Owners Corp. v Campus Assocs., 283 AD2d 608; Lopez v Imperial Delivery Serv., 282 AD2d 190; P. Cubed Enters. v Roach, 265 AD2d 537; Davila v Galarza, 221 AD2d 308). Therefore, the Supreme Court properly granted that branch of the plaintiffs motion which was to restore the action. Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant Blair Kennedy [492]*492appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated November 21, 2000, as granted that branch of the plaintiffs motion which was to restore the action to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the respondent was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see, CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see, Georgetown Mews Owners Corp. v Campus Assocs., 283 AD2d 608; Lopez v Imperial Delivery Serv., 282 AD2d 190; P. Cubed Enters. v Roach, 265 AD2d 537; Davila v Galarza, 221 AD2d 308). Therefore, the Supreme Court properly granted that branch of the plaintiffs motion which was to restore the action. Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.

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Bluebook (online)

284 A.D.2d 491, 726 N.Y.S.2d 581, 2001 N.Y. App. Div. LEXIS 6830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cioffi-v-kennedy-nyappdiv-2001.

Opinion

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