Jones v. Strachan

287 A.D.2d 438, 730 N.Y.S.2d 874, 2001 N.Y. App. Div. LEXIS 9182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated January 21, 2000, which denied her motion to restore the action to the trial calendar and granted the defendant’s cross motion to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the action is restored to the trial calendar.

On February 6, 1999, the defendant was found 30% at fault in the happening of the accident, upon a jury verdict. Thereafter, on the plaintiff’s application, and with the permission of the Supreme Court, the case was marked off the trial calendar. About eight months later, the plaintiff moved to restore the action to the trial calendar based upon a doctor’s affidavit, and the defendant cross-moved to dismiss the action. The Supreme Court denied the motion, granted the cross motion, and dismissed the action.

Under the particular facts of this case, the Supreme Court should have granted the motion, denied the cross motion, and restored the action to the trial calendar (see, Basetti v Nour, — AD2d — [decided herewith]). The presumption of abandonment and dismissal of the action provided for in CPLR 3404 is inapplicable (see, Mosesson v 288/98 W. End Tenants Corp., 272 AD2d 152). O’Brien, J. P., Krausman, Goldstein and Schmidt, JJ., concur.