Joint Venture Asset Acquisition v. Mullen

Appellate Division of the Supreme Court of New York

Joint Venture Asset Acquisition v. Mullen

233 A.D.2d 236, 650 N.Y.S.2d 538, 1996 N.Y. App. Div. LEXIS 12015

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

DecidedNovember 21, 1996

StatusPublished

This text of 233 A.D.2d 236 (Joint Venture Asset Acquisition v. Mullen) 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

Joint Venture Asset Acquisition v. Mullen, 233 A.D.2d 236, 650 N.Y.S.2d 538, 1996 N.Y. App. Div. LEXIS 12015 (N.Y. Ct. App. 1996).

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Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 5, 1995, which granted plaintiffs motion to vacate the automatic dismissal of the actions entered pursuant to CPLR 3404, unanimously affirmed, without costs.

The motion court properly exercised its discretion in vacating the automatic dismissal since plaintiff demonstrated a lack of intent to abandon the action, a meritorious cause of action, a reasonable excuse for the delay, and lack of prejudice to defendants (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, appeal dismissed 69 NY2d 874). We note, as did the motion court, that a 1989 order, resulting from the bank’s insolvency and placement in receivership, stayed all litigation involving the bank and was in place at the time the case was "marked off” the calendar, as well as prior orders denying summary judgment on the basis of the existence of facts warranting a trial. Concur—Wallach, J. P., Ross, Nardelli, Tom and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 5, 1995, which granted plaintiffs motion to vacate the automatic dismissal of the actions entered pursuant to CPLR 3404, unanimously affirmed, without costs.

The motion court properly exercised its discretion in vacating the automatic dismissal since plaintiff demonstrated a lack of intent to abandon the action, a meritorious cause of action, a reasonable excuse for the delay, and lack of prejudice to defendants (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, appeal dismissed 69 NY2d 874). We note, as did the motion court, that a 1989 order, resulting from the bank’s insolvency and placement in receivership, stayed all litigation involving the bank and was in place at the time the case was "marked off” the calendar, as well as prior orders denying summary judgment on the basis of the existence of facts warranting a trial. Concur—Wallach, J. P., Ross, Nardelli, Tom and Mazzarelli, JJ.

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Bluebook (online)

233 A.D.2d 236, 650 N.Y.S.2d 538, 1996 N.Y. App. Div. LEXIS 12015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joint-venture-asset-acquisition-v-mullen-nyappdiv-1996.

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