Santana v. Vargas

77 A.D.3d 648, 907 N.Y.S.2d 884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2010
• Status: Published

Opinion

In an action to impose a constructive trust upon certain real property, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 21, 2009, which granted the plaintiffs motion to restore the action to the tried calendar.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contention, the action was not marked “off’ or stricken from the trial calendar within the meaning of CPLR 3404 (see Freehill v ITT Sheraton Corp., 74 AD3d 876 [2010]; Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414 [2004]). Rather, the Supreme Court’s order dated June 1, 2007, indicates that the case was marked “settled” after the parties reached a tentative agreement. Accordingly, CPLR 3404 is inapplicable (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 413; Baez v Kayantas, 298 AD2d 416 [2002]), and the plaintiff was not required to demonstrate a reasonable excuse, meritorious cause of action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the active trial calendar (see Long-Waithe v Kings Apparel Inc., 10 AD3d at 414). Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.