Michael I. Weintraub, P. C. v. Computer Rad, Inc.

Appellate Division of the Supreme Court of New York

Michael I. Weintraub, P. C. v. Computer Rad, Inc.

209 A.D.2d 405, 619 N.Y.S.2d 579, 1994 N.Y. App. Div. LEXIS 11052

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 7, 1994

StatusPublished

Cited by4 cases

This text of 209 A.D.2d 405 (Michael I. Weintraub, P. C. v. Computer Rad, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Michael I. Weintraub, P. C. v. Computer Rad, Inc., 209 A.D.2d 405, 619 N.Y.S.2d 579, 1994 N.Y. App. Div. LEXIS 11052 (N.Y. Ct. App. 1994).

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Opinion

—In an action to recover damages for, inter alia, breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated January 4, 1993, which denied its motion to restore the action to the trial calendar and deemed the action abandoned and dismissed.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted.

Although the failure to timely restore an action to the trial calendar creates a presumption of abandonment (see, CPLR 3404), under the facts of this case, we find that the plaintiff made a sufficient showing to rebut the presumption (see, Fiorello v South Shore Dental Assocs., 203 AD2d 323; Roberson v City of New York, 195 AD2d 597, 598). Accordingly, and because the plaintiff provided a sufficient affidavit of merit, we exercise our discretion and grant the application to restore this action to the trial calendar. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.

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—In an action to recover damages for, inter alia, breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated January 4, 1993, which denied its motion to restore the action to the trial calendar and deemed the action abandoned and dismissed.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted.

Although the failure to timely restore an action to the trial calendar creates a presumption of abandonment (see, CPLR 3404), under the facts of this case, we find that the plaintiff made a sufficient showing to rebut the presumption (see, Fiorello v South Shore Dental Assocs., 203 AD2d 323; Roberson v City of New York, 195 AD2d 597, 598). Accordingly, and because the plaintiff provided a sufficient affidavit of merit, we exercise our discretion and grant the application to restore this action to the trial calendar. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.

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209 A.D.2d 405, 619 N.Y.S.2d 579, 1994 N.Y. App. Div. LEXIS 11052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-i-weintraub-p-c-v-computer-rad-inc-nyappdiv-1994.

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