Marabella v. Lundy

93 A.D.2d 881, 461 N.Y.S.2d 417, 1983 N.Y. App. Div. LEXIS 17762

Opinion

— In an action to foreclose a mechanic’s lien on real property, the appeal is from an order of the Supreme Court, Westchester County (Gagliardi, J.), dated November 29, 1982, which denied appellants’ motion, inter alia, to dismiss the action for want of prosecution and granted plaintiff’s cross motion to restore the action to the Trial Calendar. Order reversed, on the law, with $50 costs and disbursements, appellants’ motion granted and plaintiff’s cross motion denied. In the absence of an acceptable excuse for the failure to respond to the calendar call and an affidavit of merits, it was an abuse of discretion to restore plaintiff’s action to the Trial Calendar (see Rothenberg v Parkway Exterminating Co., 90 AD2d 497; 22 NYCRR 675.5 [b]). Titone, J. P., Thompson, Rubin and Boyers, JJ., concur.