Kassover v. Diamonds Run Ltd.

193 A.D.2d 515, 597 N.Y.S.2d 408, 1993 N.Y. App. Div. LEXIS 5122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about June 25, 1992, which, inter alia, granted plaintiffs motion to vacate an automatic dismissal pursuant to CPLR 3404 and to restore the action to the calendar, unanimously affirmed, with costs.

Assuming, in defendant’s favor, that CPLR 3404 applies to cases marked off the calendar on consent of the parties as well as to cases struck due to a party’s default or neglect (see, Williams Corp. v Roma Fragrances & Cosmetics, 166 AD2d 327; Escobar v Deepdale Gen. Hosp., 172 AD2d 486), it was not an abuse of discretion to restore the action to the calendar, in view of plaintiff’s strong showing of merit on both liability and damages, defendant’s failure to show prejudice, the extensive and ongoing medical treatment undertaken by plaintiff during the period of delay, and the parties’ stipulation providing for restoration to be calendared. Concur—Rosenberger, J. P., Kupferman, Asch and Rubin, JJ.