Nettleship v. Wallin

Appellate Division of the Supreme Court of New York

Nettleship v. Wallin

272 A.D.2d 241, 708 N.Y.S.2d 85, 2000 N.Y. App. Div. LEXIS 5884

Appellate Division of the Supreme Court of the State of New York·Decided May 25, 2000·Published·Cited by 1 cases

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 29, 1999, which granted defendants’ motion pursuant to CPLR 3404 to dismiss the action as abandoned, unanimously affirmed, with costs.

The motion, made more than a year and a half after the action had been marked off a pre-note of issue calendar when plaintiff failed to appear at a compliance conference, was properly granted in the absence of a showing by plaintiff that she did not intend to abandon the action. The asserted law office failure, neglect of the file and misrepresentations as to its status by á young associate in plaintiffs attorney’s law firm, is not a reasonable excuse for the complete inactivity in this case between the preliminary conference and the instant motion, made more than two years later. We would add that plaintiff also fails to demonstrate a meritorious cause of action and the absence of prejudice to defendants (see, Rodriguez v Hercules Chem. Co., 228 AD2d 319). Concur — Sullivan, P. J., Rosenberger, Williams, Wallach and Friedman, JJ.

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—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 29, 1999, which granted defendants’ motion pursuant to CPLR 3404 to dismiss the action as abandoned, unanimously affirmed, with costs.

The motion, made more than a year and a half after the action had been marked off a pre-note of issue calendar when plaintiff failed to appear at a compliance conference, was properly granted in the absence of a showing by plaintiff that she did not intend to abandon the action. The asserted law office failure, neglect of the file and misrepresentations as to its status by á young associate in plaintiffs attorney’s law firm, is not a reasonable excuse for the complete inactivity in this case between the preliminary conference and the instant motion, made more than two years later. We would add that plaintiff also fails to demonstrate a meritorious cause of action and the absence of prejudice to defendants (see, Rodriguez v Hercules Chem. Co., 228 AD2d 319). Concur — Sullivan, P. J., Rosenberger, Williams, Wallach and Friedman, JJ.

Nettleship v. Wallin, 272 A.D.2d 241, 708 N.Y.S.2d 85, 2000 N.Y. App. Div. LEXIS 5884 (N.Y. Ct. App. 2000).

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272 A.D.2d 241 (Nettleship v. Wallin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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