Colonia Insurance v. S&A Stores, Inc.

272 A.D.2d 209, 708 N.Y.S.2d 381

Opinions

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 24, 1999, which, in an action by an insurer against its insured to recover unpaid premiums, granted plaintiff’s mo tion to vacate an automatic dismissal of the action pursuant to CPLR 3404, affirmed, without costs.

Plaintiff demonstrated that it never intended to abandon the action. The action was marked off the calendar pursuant to stipulation entered into between plaintiff and defendant. The stipulation placed the onus of restoration on defendant, since it needed to bring a third-party action against an insurance broker and plaintiff was accommodating such need by entering into the stipulation. The stipulation was followed with immediate and significant third-party practice, apparently still ongoing at the time the instant motion was made shortly after the automatic dismissal. That practice included the commencement and prosecution of a second third-party action against yet another insurance broker, who was the only party to oppose the instant motion. In the present context, the stipulation itself and the absence of opposition from defendant, the other party to the stipulation, are persuasive evidence of the action’s merit. Concur — Sullivan, P. J., Toni, Mazzarelli and Wallach, JJ.