Laing v. Bushin

255 A.D.2d 113, 679 N.Y.S.2d 144, 1998 N.Y. App. Div. LEXIS 11649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1998
• Status: Published

Opinion

—Appeal from order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 31, 1997, which denied plaintiffs’ motion for an order extending their time to file a note of issue, and granted defendants’ cross motion to dismiss plaintiffs’ complaint pursuant to CPLR 3404, is deemed to be an appeal from the subsequent judgment of the same court and Justice, entered January 15, 1998, dismissing the complaint, and as so considered, the judgment is unanimously affirmed, without costs.

Plaintiffs’ action was “marked off” the calendar for failure to appear at a pretrial conference in 1993, and plaintiffs did not thereafter take any steps in prosecution of the action until four years later when they attempted to file a note of issue. Under the circumstances, plaintiffs’ interim prosecution of a related but unconsolidated action is insufficient to rebut the presumption of abandonment (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 721, appeal dismissed 69 NY2d 874). Nor have plaintiffs otherwise made a sufficient showing to warrant restoration of their action (see, Rodriguez v Middle Atl. Auto Leasing, supra, at 722; Ware v Porter, 227 AD2d 214). Concur— Ellerin, J. P., Williams, Mazzarelli and Andrias, JJ.