Cohen v. Seiden

266 A.D.2d 334, 698 N.Y.S.2d 151, 1999 N.Y. App. Div. LEXIS 11533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Joseph, J.), dated October 26, 1998, which denied their motion to restore the case to the trial calendar and dismissed the complaint, and (2) an order of the same court, dated December 10, 1998, which denied their motion for reargument.

Ordered that the appeal from the order dated December 10, 1998, is dismissed, as no appeal lies from an order denying re-argument (see, Catchpole v U.S. Underwriters Ins. Co., 250 AD2d 566; Logarzo v D’Angelis-Hall, 248 AD2d 597, 598); and it is further,

Ordered that the order dated October 26, 1998, is reversed, as a matter of discretion, the motion to restore the case to the trial calendar is granted, and the complaint is reinstated; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

Under the circumstances of this case, and given the undisputed fact that the plaintiffs voluntarily withdrew the case from the trial calendar without opposition from the defendant and with leave to restore it upon 10 days notice, the Supreme Court improvidently exercised its discretion in denying the plaintiffs’ timely application to restore the case to the calendar and dismissing the complaint. O’Brien, J. P., Sullivan, Gold-stein, Luciano and Feuerstein, JJ., concur.