Statman v. Yavne

Appellate Division of the Supreme Court of New York

Statman v. Yavne

10 A.D.3d 682, 781 N.Y.S.2d 743, 2004 N.Y. App. Div. LEXIS 10939

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

DecidedSeptember 20, 2004

StatusPublished

This text of 10 A.D.3d 682 (Statman v. Yavne) 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

Statman v. Yavne, 10 A.D.3d 682, 781 N.Y.S.2d 743, 2004 N.Y. App. Div. LEXIS 10939 (N.Y. Ct. App. 2004).

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Opinion

In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Queens County [683]*683(O’Donoghue, J.), dated February 23, 2004, which denied their motion pursuant to CPLR 5015 (a) to vacate an order of the same court dated January 8, 2003, granting the defendants’ motion to dismiss the complaint pursuant to CPLR 3404, upon the plaintiffs’ default in opposing the motion.

Ordered that the order dated February 23, 2004, is reversed, on the law, with costs, the motion to vacate the order dated January 8, 2003, is granted, the order dated January 8, 2003, is vacated, and the motion to dismiss the complaint is denied.

“CPLR 3404 should be reserved strictly for cases that have reached the trial calendar” (Lopez v Imperial Delivery Serv., 282 AD2d 190, 199 [2001]). Accordingly, since the present action was never placed on the trial calendar, the Supreme Court erred in granting the defendants’ motion to dismiss the action pursuant to CPLR 3404. Altman, J.P., Goldstein, Schmidt, Cozier and Skelos, JJ, concur.

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In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Queens County [683]*683(O’Donoghue, J.), dated February 23, 2004, which denied their motion pursuant to CPLR 5015 (a) to vacate an order of the same court dated January 8, 2003, granting the defendants’ motion to dismiss the complaint pursuant to CPLR 3404, upon the plaintiffs’ default in opposing the motion.

Ordered that the order dated February 23, 2004, is reversed, on the law, with costs, the motion to vacate the order dated January 8, 2003, is granted, the order dated January 8, 2003, is vacated, and the motion to dismiss the complaint is denied.

“CPLR 3404 should be reserved strictly for cases that have reached the trial calendar” (Lopez v Imperial Delivery Serv., 282 AD2d 190, 199 [2001]). Accordingly, since the present action was never placed on the trial calendar, the Supreme Court erred in granting the defendants’ motion to dismiss the action pursuant to CPLR 3404. Altman, J.P., Goldstein, Schmidt, Cozier and Skelos, JJ, concur.

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Bluebook (online)

10 A.D.3d 682, 781 N.Y.S.2d 743, 2004 N.Y. App. Div. LEXIS 10939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/statman-v-yavne-nyappdiv-2004.

Opinion

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