Farmer v. L. B. Smith, Inc.

52 A.D.2d 1068, 384 N.Y.S.2d 331, 1976 N.Y. App. Div. LEXIS 12993

Opinion

Appeal unanimously dismissed, without costs, in accordance with the following memorandum: Plaintiffs appeal from an order denying their motion to vacate four preclusion orders and defendants move for dismissal of the appeal upon the ground that the action has been dismissed pursuant to CPLR 3404 and the rules of this court (22 NYCRR 1024.13). The action was noticed for trial in May, 1973 and placed upon the general docket on June 23, 1974. Inasmuch as a year has elapsed without entry of an order restoring the case to the Trial Calendar, plaintiffs’ application is premature until the default is vacated. Defendants’ motion to dismiss the appeal is, therefore, granted (see Chavoustie v Village of Newark, 52 AD2d 1064). (Appeal from order of Monroe Supreme Court—preclusion orders.) Present—Marsh, P. J., Moule, Simons and Dillon, JJ.