Goldberg, Weprin & Ustin v. Borg

Appellate Division of the Supreme Court of New York

Goldberg, Weprin & Ustin v. Borg

271 A.D.2d 265, 707 N.Y.S.2d 40, 2000 N.Y. App. Div. LEXIS 4077

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

DecidedApril 11, 2000

StatusPublished

This text of 271 A.D.2d 265 (Goldberg, Weprin & Ustin v. Borg) 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.

Bluebook

Goldberg, Weprin & Ustin v. Borg, 271 A.D.2d 265, 707 N.Y.S.2d 40, 2000 N.Y. App. Div. LEXIS 4077 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about May 10, 1999, which granted plaintiffs motion to restore the matter to the calendar, unanimously affirmed, with costs.

It is undisputed that this case was marked off the calendar due to the failure of both parties to appear at a pre-trial conference in June 1997 and the erroneous belief of both parties that the case was to be placed by the court on the Referee’s calendar for determination of the issue of damages. Plaintiff, a law firm, did not become aware that the case had been marked off the calendar until August 1998, after reviewing the files of one of its former attorneys, who left the firm under strained conditions and without informing plaintiff that the case had been marked off the calendar. Plaintiffs delay in restoring the case was properly excused in view of the clear merits of the case, i.e., plaintiff having obtained summary judgment on the issue of liability, the absence of an intent to abandon on plaintiffs part, and the lack of prejudice to defendants (see, CPLR 2005; [266]*266Sanchez v Javind Apt. Corp., 246 AD2d 353). Concur — Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about May 10, 1999, which granted plaintiffs motion to restore the matter to the calendar, unanimously affirmed, with costs.

It is undisputed that this case was marked off the calendar due to the failure of both parties to appear at a pre-trial conference in June 1997 and the erroneous belief of both parties that the case was to be placed by the court on the Referee’s calendar for determination of the issue of damages. Plaintiff, a law firm, did not become aware that the case had been marked off the calendar until August 1998, after reviewing the files of one of its former attorneys, who left the firm under strained conditions and without informing plaintiff that the case had been marked off the calendar. Plaintiffs delay in restoring the case was properly excused in view of the clear merits of the case, i.e., plaintiff having obtained summary judgment on the issue of liability, the absence of an intent to abandon on plaintiffs part, and the lack of prejudice to defendants (see, CPLR 2005; [266]*266Sanchez v Javind Apt. Corp., 246 AD2d 353). Concur — Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.

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Bluebook (online)

271 A.D.2d 265, 707 N.Y.S.2d 40, 2000 N.Y. App. Div. LEXIS 4077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-weprin-ustin-v-borg-nyappdiv-2000.

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