Soto v. Trinity Morris Corp.

Appellate Division of the Supreme Court of New York

Soto v. Trinity Morris Corp.

27 A.D.3d 305, 810 N.Y.S.2d 331

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

DecidedMarch 16, 2006

StatusPublished

This text of 27 A.D.3d 305 (Soto v. Trinity Morris 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

Soto v. Trinity Morris Corp., 27 A.D.3d 305, 810 N.Y.S.2d 331 (N.Y. Ct. App. 2006).

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Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered January 5, 2005, which denied defendant’s motion to dismiss the complaint as abandoned, and granted that portion of plaintiffs’ cross motion to restore the matter to the calendar while denying that portion seeking leave to amend the bill of particulars, unanimously affirmed, without costs.

The cross motion to amend the bill of particulars lacked both a showing of merit (Posner v Central Synagogue, 202 AD2d 284 [1994], lv dismissed 83 NY2d 953 [1994]) and an adequate excuse for the delay in raising new categories of injuries (Spielberger v Giambalvo, 207 AD2d 877 [1994]). The motion to dismiss the complaint pursuant to CPLR 3404 was properly denied in view of plaintiffs’ meritorious cause of action, their reasonable excuse for the delay in moving to restore the case to the calendar, the absence of a showing of intent to abandon the action, and a lack of prejudice to defendant (Werner v Tiffany & Co., 291 AD2d 305 [2002]). Concur—Andrias, J.P., Saxe, Friedman, Marlow and Sullivan, JJ.

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Order, Supreme Court, Bronx County (Stanley Green, J.), entered January 5, 2005, which denied defendant’s motion to dismiss the complaint as abandoned, and granted that portion of plaintiffs’ cross motion to restore the matter to the calendar while denying that portion seeking leave to amend the bill of particulars, unanimously affirmed, without costs.

The cross motion to amend the bill of particulars lacked both a showing of merit (Posner v Central Synagogue, 202 AD2d 284 [1994], lv dismissed 83 NY2d 953 [1994]) and an adequate excuse for the delay in raising new categories of injuries (Spielberger v Giambalvo, 207 AD2d 877 [1994]). The motion to dismiss the complaint pursuant to CPLR 3404 was properly denied in view of plaintiffs’ meritorious cause of action, their reasonable excuse for the delay in moving to restore the case to the calendar, the absence of a showing of intent to abandon the action, and a lack of prejudice to defendant (Werner v Tiffany & Co., 291 AD2d 305 [2002]). Concur—Andrias, J.P., Saxe, Friedman, Marlow and Sullivan, JJ.

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Bluebook (online)

27 A.D.3d 305, 810 N.Y.S.2d 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-trinity-morris-corp-nyappdiv-2006.

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