Palmer v. George W. Long, Inc.

219 A.D.2d 854, 632 N.Y.S.2d 1008, 1995 N.Y. App. Div. LEXIS 10958

Opinion

Order unanimously affirmed without costs. Memorandum: There is no merit to the contention of defendant that Supreme Court erred in placing this case on the pre-note calendar for Supreme Court, Monroe County. CPLR 3404 does not apply to this case because by its very terms it applies only where a case is "marked 'off or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter”. There is no evidence in the record to support defendant’s assertion that the case was stricken from Justice Cornelius’ pre-note calendar. In any event, plaintiff established that she never intended to abandon the action (see, Beaugene v Duo-Fast Corp., 206 AD2d 971). (Appeal from Order of Supreme Court, Monroe County, Cornelius, J. — Restore to Calendar.) Present — Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.