Honeoye Falls-Lima Central School District v. Leo J. Roth Corp.

53 A.D.2d 1044, 386 N.Y.S.2d 165, 1976 N.Y. App. Div. LEXIS 15856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1976
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: This case was stricken from the general docket and dismissed for neglect to prosecute by entry of the court clerk pursuant to CPLR 3404. Thus defendants’ motions at Special Term to dismiss the complaint were unnecessary and moot. Special Term properly granted defendants’ motions to strike plaintiff’s note of issue since no action was pending when the note of issue was filed. Plaintiff’s cross motion to restore the case to the Trial Calendar was not the proper remedy. We have held that in these circumstances a case may not be restored in the absence of a motion to vacate the default, with the showing required on such a motion. (Chavoustie v Village of Newark, 52 AD2d 1064; Colucci v Slippery Slats & All That, 52 AD2d 1083), decided May 28, 1976; Mclntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692). If we were to reach the merits on plaintiff’s cross motion, we would hold that plaintiff has totally failed to set forth any fact which would indicate that its cause of action is meritorious. (Appeal from order of Monroe Supreme Court—dismiss complaint.) Present—Marsh, P. J., Cardamone, Mahoney, Dillon and Goldman, JJ.