Promenade v. Schindler Elevator Corp.

Appellate Division of the Supreme Court of New York

Promenade v. Schindler Elevator Corp.

295 A.D.2d 201, 743 N.Y.S.2d 495, 2002 N.Y. App. Div. LEXIS 7619

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

DecidedJune 18, 2002

StatusPublished

This text of 295 A.D.2d 201 (Promenade v. Schindler Elevator Corp.) 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

Promenade v. Schindler Elevator Corp., 295 A.D.2d 201, 743 N.Y.S.2d 495, 2002 N.Y. App. Div. LEXIS 7619 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered February 13, 2001, which denied plaintiffs motion to vacate the dismissal of this action, unanimously reversed, on the law, without costs, plaintiffs motion granted, and the case restored to the calendar. Appeal from subsequent order, same court and Justice, entered October 22, 2001, denying “reargument and renewal” of the prior order, unanimously dismissed as academic, without costs.

Defendants claim prejudice from plaintiffs delay of more than a decade in bringing this case to trial or mediation. When plaintiff failed to appear for a scheduled discovery conference in May 1997, the case was marked off the pre-note-of-issue calendar. A year later, plaintiff having failed to move to restore, the case was deemed abandoned and dismissed, purportedly by operation of law under CPLR 3404.

All are in agreement that CPLR 3404 relates to automatic dismissal of “abandoned” cases, i.e., cases not restored to the calendar within a year of being marked off (Banca Di Roma v Tripodi Eyewear Intl., 219 AD2d 536). What needs to be clarified here is that this rule is strictly reserved for cases that have already been placed on the trial calendar (Lopez v Imperial Delivery Serv., 282 AD2d 190, lv dismissed 96 NY2d 937); it is inapplicable to cases where note of issue has not yet been filed (Johnson v Minskoff & Sons, 287 AD2d 233, 237; Auerbach v Kaufman, 173 AD2d 229).

No note of issue was filed in the instant case. In its motion to restore, plaintiff made a showing of merit to its complaint, and sufficiently met defendants’ objections based on prejudice. Other discovery-stage remedies may have been available to defendants, but dismissal under CPLR 3404 was improper. Accordingly, plaintiffs motion to restore should have been granted. Concur—Andrias, J.P., Rosenberger, Wallach, Rubin and Friedman, JJ.

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—Order, Supreme Court, New York County (Edward Lehner, J.), entered February 13, 2001, which denied plaintiffs motion to vacate the dismissal of this action, unanimously reversed, on the law, without costs, plaintiffs motion granted, and the case restored to the calendar. Appeal from subsequent order, same court and Justice, entered October 22, 2001, denying “reargument and renewal” of the prior order, unanimously dismissed as academic, without costs.

Defendants claim prejudice from plaintiffs delay of more than a decade in bringing this case to trial or mediation. When plaintiff failed to appear for a scheduled discovery conference in May 1997, the case was marked off the pre-note-of-issue calendar. A year later, plaintiff having failed to move to restore, the case was deemed abandoned and dismissed, purportedly by operation of law under CPLR 3404.

All are in agreement that CPLR 3404 relates to automatic dismissal of “abandoned” cases, i.e., cases not restored to the calendar within a year of being marked off (Banca Di Roma v Tripodi Eyewear Intl., 219 AD2d 536). What needs to be clarified here is that this rule is strictly reserved for cases that have already been placed on the trial calendar (Lopez v Imperial Delivery Serv., 282 AD2d 190, lv dismissed 96 NY2d 937); it is inapplicable to cases where note of issue has not yet been filed (Johnson v Minskoff & Sons, 287 AD2d 233, 237; Auerbach v Kaufman, 173 AD2d 229).

No note of issue was filed in the instant case. In its motion to restore, plaintiff made a showing of merit to its complaint, and sufficiently met defendants’ objections based on prejudice. Other discovery-stage remedies may have been available to defendants, but dismissal under CPLR 3404 was improper. Accordingly, plaintiffs motion to restore should have been granted. Concur—Andrias, J.P., Rosenberger, Wallach, Rubin and Friedman, JJ.

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Bluebook (online)

295 A.D.2d 201, 743 N.Y.S.2d 495, 2002 N.Y. App. Div. LEXIS 7619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/promenade-v-schindler-elevator-corp-nyappdiv-2002.

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