Perez v. Gerardi

285 A.D.2d 454, 727 N.Y.S.2d 883, 2001 N.Y. App. Div. LEXIS 6898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Lawrence Gerardi appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated May 15, 2000, as, upon renewal, granted the plaintiffs’ motion to restore the action to the trial calendar and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The action should not have been marked off the trial calendar pursuant to CPLR 3404 when the plaintiffs failed to appear at a preliminary conference (see, Lopez v Imperial Delivery Serv., 282 AD2d 190). Accordingly, the Supreme Court properly granted the plaintiffs’ motion to restore the action. Furthermore, the appellant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him was properly denied, as there are issues of fact requiring a trial (see, CPLR 3212 [b]). O’Brien, J. P., Altman, Luciano and Adams, JJ., concur.