Nicolich v. Fitzgerald

Appellate Division of the Supreme Court of New York

Nicolich v. Fitzgerald

259 A.D.2d 741, 687 N.Y.S.2d 418, 1999 N.Y. App. Div. LEXIS 3180

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

DecidedMarch 29, 1999

StatusPublished

Cited by2 cases

This text of 259 A.D.2d 741 (Nicolich v. Fitzgerald) 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.

Bluebook

Nicolich v. Fitzgerald, 259 A.D.2d 741, 687 N.Y.S.2d 418, 1999 N.Y. App. Div. LEXIS 3180 (N.Y. Ct. App. 1999).

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Opinion

In an action to re[742]*742cover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Carter, J.), dated April 9, 1998, which denied their motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion is granted.

The action was removed from the trial calendar on mutual consent, inter alia, to allow the defendant to conduct a further physical examination of one of the plaintiffs. It appears that the defendant took no action to conduct the physical examination, and the case was subsequently dismissed pursuant to CPLR 3404 since the plaintiffs failed to restore the action within one year. These circumstances indicate that the litigation was not abandoned by the plaintiffs, and that CPLR 3404 was not applicable. Thus, the Supreme Court should have granted the plaintiffs’ motion to restore the action to the trial calendar (see, Denver v American Home Prods. Corp., 138 AD2d 670; General Staple Co. v Amtronics, Inc., 81 AD2d 877). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.

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In an action to re[742]*742cover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Carter, J.), dated April 9, 1998, which denied their motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion is granted.

The action was removed from the trial calendar on mutual consent, inter alia, to allow the defendant to conduct a further physical examination of one of the plaintiffs. It appears that the defendant took no action to conduct the physical examination, and the case was subsequently dismissed pursuant to CPLR 3404 since the plaintiffs failed to restore the action within one year. These circumstances indicate that the litigation was not abandoned by the plaintiffs, and that CPLR 3404 was not applicable. Thus, the Supreme Court should have granted the plaintiffs’ motion to restore the action to the trial calendar (see, Denver v American Home Prods. Corp., 138 AD2d 670; General Staple Co. v Amtronics, Inc., 81 AD2d 877). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.

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Bluebook (online)

259 A.D.2d 741, 687 N.Y.S.2d 418, 1999 N.Y. App. Div. LEXIS 3180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicolich-v-fitzgerald-nyappdiv-1999.

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