O'Boye v. Consolidated Edison of N.Y.

• Decision Date: 04 December 1990
• Citation: O'Boye v. Consolidated Edison of N.Y., 562 N.Y.S.2d 106, 168 A.D.2d 219 (N.Y. App. Div. 1990)
• Parties: James O'BOYE, et al., Plaintiffs-Respondents, v. CONSOLIDATED EDISON OF N.Y., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 106

562 N.Y.S.2d 106

168 A.D.2d 219

James O'BOYE, et al., Plaintiffs-Respondents, v.CONSOLIDATED EDISON OF N.Y., et al., Defendants-Appellants [And two third-party actions.]

Supreme Court, Appellate Division First Department.

Dec. 4, 1990.

Before ROSS, J.P., and CARRO, MILONAS, ROSENBERGER and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.) entered March 6, 1989, which granted plaintiffs' motion pursuant to CPLR 3404 to vacate an order of dismissal and to restore the case to the calendar, unanimously affirmed, without costs.

PlaintiffJames P. O'Boye, was allegedly permanently injured in an airlock chamber while working at a nuclear power station, and his wife, who sues derivatively, commenced this action against the various defendants in July, 1983.After extensive discovery, plaintiffs were permitted to file a Note of Issue in June, 1987, with the understanding that discovery would be completed by October 1, 1987.However, on September 1, 1987, defendant Westinghouse started a third-party action against second third-party defendantUnited Engineers and Constructors, Inc., and additional discovery was permitted.After plaintiffs' counsel failed to attend several conferences before the IAS Court, the Court struck the case from the calendar in September, 1988.Over one year later, a certificate noting the dismissal of the case was filed pursuant to CPLR 3404.

On January 8, 1990, plaintiffs' counsel moved to have the dismissal vacated and to have the case restored to the calendar.The IAS Court ultimately granted plaintiffs' motion and assessed a $1,000 sanction against plaintiffs' counsel.

The IAS Court's order vacating the dismissal and restoring the case to the trial...