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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 30, 2000

StatusPublished

This text of 277 A.D.2d 178 (Frankola v. Mainco Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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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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.

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Bluebook (online)

277 A.D.2d 178, 717 N.Y.S.2d 129, 2000 N.Y. App. Div. LEXIS 12449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frankola-v-mainco-co-nyappdiv-2000.

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