Kougianos v. City of New York

234 A.D.2d 14, 650 N.Y.S.2d 155, 1996 N.Y. App. Div. LEXIS 12223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about October 19, 1995, dismissing the action, and bringing up for review an order, same court and Justice, which, in an action for personal injuries, granted defendants’ motion pursuant to CPLR 3404 to dismiss the action as abandoned, unanimously affirmed, without costs.

The only activity that appears to have occurred after the case was marked off the calendar pursuant to the parties’ stipulation, so ordered by the court, was plaintiff’s partial compliance, some 15 months after the stipulation, with pre-stipulation demands for IRS tax authorizations. As it happened, the IRS advised the parties that all records covered by the authorizations had been destroyed. While plaintiff claimed compliance with defendants’ other discovery demands, he admitted that he never made himself available for physical examination, offering as an excuse his residence in Greece and promising to make himself available at some unspecified time. Under the circumstances, the IAS Court properly found that plaintiff failed to rebut the presumption of abandonment that arose once a year passed without his having moved to restore the action to calendar (see, Williams v Giattini, 49 AD2d 337, 339; Keller v United States Lines, 21 AD2d 968). A weak showing of merit and a failure to demonstrate lack of prejudice to defendants also militate in favor of dismissal. Concur—Milonas, J. P., Wallach, Kupferman, Ross and Williams, JJ.