Frankola v. Mainco Co.

Appellate Division of the Supreme Court of New York

Frankola v. Mainco Co.

277 A.D.2d 178, 717 N.Y.S.2d 129, 2000 N.Y. App. Div. LEXIS 12449

Appellate Division of the Supreme Court of the State of New York·Decided November 30, 2000·Published

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), [179]*179entered March 15, 1999, which denied plaintiff’s motion to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion to restore was properly denied where disclosure was not complete when the action was stricken from the trial calender, no disclosure took place while the case was off the calendar, and defendants would be prejudiced by having to complete disclosure eleven years after the incident and eight years after the action was stricken (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 723, appeal dismissed 69 NY2d 874). In addition, plaintiff failed to establish a reasonable excuse for the delay and a lack of intent to abandon the action. The arguments she makes on appeal concerning these issues were not raised before the motion court, and therefore may not be considered on appeal (see, Hasselt v Allen, 178 AD2d 266). Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Saxe, JJ.

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—Order, Supreme Court, New York County (Leland DeGrasse, J.), [179]*179entered March 15, 1999, which denied plaintiff’s motion to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion to restore was properly denied where disclosure was not complete when the action was stricken from the trial calender, no disclosure took place while the case was off the calendar, and defendants would be prejudiced by having to complete disclosure eleven years after the incident and eight years after the action was stricken (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 723, appeal dismissed 69 NY2d 874). In addition, plaintiff failed to establish a reasonable excuse for the delay and a lack of intent to abandon the action. The arguments she makes on appeal concerning these issues were not raised before the motion court, and therefore may not be considered on appeal (see, Hasselt v Allen, 178 AD2d 266). Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Saxe, JJ.

Frankola v. Mainco Co., 277 A.D.2d 178, 717 N.Y.S.2d 129, 2000 N.Y. App. Div. LEXIS 12449 (N.Y. Ct. App. 2000).

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277 A.D.2d 178 (Frankola v. Mainco Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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