Klein v. Rauschman

67 A.D.2d 902, 413 N.Y.S.2d 177, 1979 N.Y. App. Div. LEXIS 10672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1979
• Status: Published

Opinions

— In an action to recover damages (1) "for conspiracy to defeat and obstruct justice” and (2) "for libel and slander”, plaintiff appeals from an order of the Supreme Court, Kings County, entered September 15, 1977, which denied his motion to restore the action to the Trial Calendar. Order reversed, with $50 costs and disbursements, and motion granted. In the course of bankruptcy proceedings, the United States District Court for the Southern District of New York, on March 27, 1974, issued an order staying suits against the debtor Walston & Co., a defendant herein. That stay was in effect on September 9, 1974, the date on which the Supreme Court, Kings County, at Trial Term, marked this action "Off Cal. to be Restored on 5 days’ notice”. The stay remained in effect until the Federal court lifted it by order dated June 15, 1977. Accordingly, the order of the Federal court stayed operation of CPLR 3404 as to this action. Thus, when by notice of motion dated June 23, 1977 plaintiff moved to restore the action to the Trial Calendar, that motion should have been granted. Even if, arguendo, the operation of CPLR 3404 was technically not stayed by the Federal court order, as a matter of law plaintiff rebutted the presumption that the action had been abandoned (see Marco v Sachs, 10 NY2d 542). O’Connor, Shapiro and Martuscello, JJ., concur.