Colucci v. Slippery Slats & All That, Inc.

52 A.D.2d 1083, 384 N.Y.S.2d 320, 1976 N.Y. App. Div. LEXIS 13015

Opinion

Order unanimously reversed with costs, and motion denied. Memorandum: One year after this case was removed from the Trial Calendar to the general docket it was stricken from the calendar as abandoned under CPLR 3404. It was improper for the court to restore the case to the calendar in the absence of a motion to vacate the default, supported by appropriate showing of merit, absence of prejudice to the defendant, excuse for default and present readiness (Chavoustie v Village of Newark, 52 AD2d 1064; McIntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692). We do not reach the merits. (Appeal from order of Erie Supreme Court— restore action to calendar.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.