Cippitelli v. Town of Niskayuna

256 A.D.2d 744, 681 N.Y.S.2d 645, 1998 N.Y. App. Div. LEXIS 13293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1998
• Status: Published

Opinions

Mikoll, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered May 22, 1997 in Schenectady County, which granted defendants’ motions to dismiss the complaint for failure to file a new note of issue within one year.

This matter was commenced in 1984. The amended complaint alleges that defendants Fred Jackson, Alexander Jackson and Jackson Demolition, Inc. (hereinafter collectively referred to as Jackson Demolition) used their property, adjoining plaintiffs’ property in the Town of Niskayuna, Schenectady County, in a negligent manner by illegally operating a landfill on the property since 1978. Plaintiffs alleged that such use was a nuisance and that defendant Town of Niskayuna was negligent insofar as it permitted Jackson Demolition to operate the landfill in violation of certain local laws. Plaintiffs allege that the Town’s negligence in this regard constitutes a cause of action for inverse condemnation of plaintiffs’ property.

An initial trial commenced in 1990 and ended in a mistrial. A second trial was scheduled for 1992 which failed to occur. In 1995, after unsuccessful settlement negotiations, the matter was ordered to trial for January 1995. Plaintiffs’ counsel withdrew from representation with Supreme Court’s consent after the court found an irreconcilable breakdown in the client-attorney relationship. After several efforts to reschedule trial, Supreme Court struck the note of issue informing plaintiffs by letter, constituting the order of the court, that if the case was not restored within a year dismissal of the case would result. ■

A year later, Jackson Demolition moved to dismiss plaintiffs’ complaint pursuant to CPLR 3404 on the ground that plaintiffs abandoned the case. By cross motion, the Town moved to dismiss the complaint on the same ground. Plaintiffs, appearing pro se, opposed the motions and sought to have the case restored to the calendar. Supreme Court found that plaintiffs failed to satisfy the criteria necessary to restore the case to the calendar and granted defendants’ motions dismissing the complaint. Plaintiffs appeal.

This matter is not properly before this Court and we decline to address the arguments raised as to the propriety of Supreme Court’s dismissal. A dismissal made pursuant to CPLR 3404 constitutes a default and no appeal lies therefrom (see, Floccuzio v Galli, 239 AD2d 819, lv dismissed 91 NY2d 848; see also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3404:5, at 76). Absent a motion to vacate the default and a denial thereof, an appeal will not lie (see, Matter of Hurst v Hurst, 227 AD2d 689).

Crew III, White and Yesawich Jr., JJ., concur.