Endues v. Mingles Restaurant Ltd.

242 A.D.2d 455, 662 N.Y.S.2d 43

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered November 29, 1996, which granted plaintiffs’ motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion was properly granted upon findings of an excusable lack of awareness on the part of incoming counsel that the case had been marked off the calendar, activity during the period the case was off calendar sufficient to show that there was no intention to abandon it, lack of prejudice to defendants as a result of the delay in restoring the case, and a meritorious cause of action (see, Rutger Fabrics Corp. v United States Laminating Corp., 111 AD2d 40). Concur—Milonas, J. P., Rosenberger, Wallach, Nardelli and Rubin, JJ.