Ben Goldin, Inc. v. English

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Ben Goldin, Inc. v. English, 480 N.Y.S.2d 753, 104 A.D.2d 960 (N.Y. App. Div. 1984)
• Decision Date: 22 October 1984
• Parties: BEN GOLDIN, INC., Respondent, v. Arthur C. ENGLISH, et al., defendants; Ethel English, appellant.

Page 753

480 N.Y.S.2d 753

104 A.D.2d 960

BEN GOLDIN, INC., Respondent, v. Arthur C. ENGLISH, et al., defendants; Ethel English, appellant.

Supreme Court, Appellate Division Second Department.

Oct. 22, 1984.

Soukup & Hibner, Garden City (John Raymond Hibner and Jeffrey Edward Soukup, Garden City, of counsel), for appellant.

Semon & Mondshein, Jericho, (Lee J. Mondshein, Jericho, of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to set aside a fraudulent conveyance, defendant Ethel English appeals from an order of the Supreme Court, Nassau County, entered June 23, 1983, granting plaintiff's motion, made pursuant to 22 NYCRR 785.2, for an order restoring the action to the trial calendar.

Order affirmed, with costs.

The severed action as against defendant Ethel English was dismissed pursuant to 22 NYCRR 785.2(e) and (f), by order of the Supreme Court, Nassau County, on May 11, 1982. Generally, an action which has been dismissed may not be restored to the trial calendar until the dismissal of the action has been vacated (see Colombik v. Heinrich, 11 A.D.2d 1026, 205 N.Y.S.2d 921; Klein v. Vernon Lumber Corp., 269 App.Div. 71, 54 N.Y.S.2d 248; Niewiadowski v. Kulp-Waco, 279 App.Div. 974, 111 N.Y.S.2d 564). However, in the interest of expediency and to forestall further prolongation of the action, the motion to restore may be properly treated as complying with the technical requirements under the general prayer in the notice of motion for other and further relief (see Radar-Electronics v. Oscar Leventhal, Inc., 8 A.D.2d 778, 186 N.Y.S.2d 778; Levine v. Levy, 29 A.D.2d 827, 287 N.Y.S.2d 540). Under these circumstances, it was proper for Special Term to grant the motion to restore when it otherwise had been shown that it was proper to...