3 Park Ave. Co. v. New York Educational Const. Fund

• Decision Date: 19 March 1985
• Citation: 3 Park Ave. Co. v. New York Educational Const. Fund, 486 N.Y.S.2d 245, 109 A.D.2d 656 (N.Y. App. Div. 1985)
• Parties: 3 PARK AVENUE COMPANY, Plaintiff-Respondent, v. NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 245

486 N.Y.S.2d 245

109 A.D.2d 656

3 PARK AVENUE COMPANY, Plaintiff-Respondent, v.NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 19, 1985.

J.L. Schapira, New York City, for plaintiff-respondent.

M. Weldon, New York City, for defendant-appellant.

Before MURPHY, J.P., and KUPFERMAN, ASCH and BLOOM, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County entered July 16, 1984, which granted upon reargument, plaintiff's motion to restore the matter to the calendar, reversed, without costs, on the law, the facts and as a matter of discretion without prejudice to a motion to vacate the dismissal of its complaint and to restore the case to the trial calendar, made upon proper papers.

Plaintiff, a general contractor, brought action against defendant property owner to recover damages for delay and for extra work.Plaintiff filed a statement of readiness and note of issue on March 9, 1981.The case was marked "off calendar" somewhat more than two years later.On April 5, 1984, two days short of one year after the case had been marked off, a motion was made to restore.On May 11, 1984, the motion to restore was denied.

On June 13, 1984, plaintiff moved to reargue the denial of its motion to restore.Reargument was granted and the case restored to the calendar.

CPLR 3404 provides that when a case is marked off the calendar "and not restored within one year thereafter, [it] shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.The clerk shall make an appropriate entry without the necessity of an order".The dismissal is automatic and self-executing and "[b]efore a plaintiff may move to restore a case to the Trial Calendar, he must first move to vacate the automatic dismissal of his...