Cippitelli v. Town of Niskayuna

• Decision Date: 10 December 1998
• Citation: Cippitelli v. Town of Niskayuna, 681 N.Y.S.2d 645 (N.Y. App. Div. 1998)
• Parties: 1998 N.Y. Slip Op. 10,967 Virginio CIPPITELLI et al., Appellants, v. TOWN OF NISKAYUNA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 645

681 N.Y.S.2d 645

1998 N.Y. Slip Op. 10,967

Virginio CIPPITELLI et al., Appellants, v.TOWN OF NISKAYUNA et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 10, 1998.

Joann Cippitelli and Virginio Cippitelli, Schenectady, appellants in person.

Horigan, Horigan & Lombardo(Derek L. Hayden of counsel), Amsterdam, for Fred Jackson, respondent.

Lombardi, Reinhard, Walsh & Harrison P.C.(Mary Elizabeth Slevin of counsel), Albany, for Alexander Jackson and another, respondents.

Before CARDONA, P.J., MIKOLL, CREW, WHITE and YESAWICH, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court(Lynch, J.), entered May 22, 1997 in Schenectady County, which granted defendants' motions to dismiss the complaint for failure to file a new note of issue within one year.

This matter was commenced in 1984.The amended complaint alleges that defendantsFred Jackson, Alexander Jackson and Jackson Demolition Inc.(hereinafter collectively referred to as Jackson Demolition) used their property, adjoining plaintiffs' property in the Town of Niskayuna, Schenectady County, in a negligent manner by illegally operating a landfill on the property since 1978.Plaintiffs alleged that such use was a nuisance and that defendantTown of Niskayuna was negligent insofar as it permitted Jackson Demolition to operate the landfill in violation of certain local laws.Plaintiffs allege that the Town's negligence in this regard constitutes a cause of action for inverse condemnation of plaintiffs' property.

An initial trial commenced in 1990 and ended in a mistrial.A second trial was scheduled for 1992 which failed to occur.In 1995, after unsuccessful settlement negotiations, the matter was ordered to trial for January 1995.Plaintiffs' counsel withdrew from representation with Supreme Court's consent after the court found an irreconcilable breakdown in the client-attorney relationship.After several efforts to reschedule trial, Supreme Court struck the note of issue informing plaintiffs by letter, constituting the order of the court, that if the case was not restored within a year dismissal of the case would result.

A year later, Jackson Demolition moved to dismiss plaintiffs' complaint pursuant to CPLR 3404 on the ground that plaintiffs abandoned the case.By cross motion, the Town moved to dismiss the complaint on the same ground.Plaintiffs, appearing pro se, opposed the motions and sought to have the case restored to the calendar.Supreme Court found that plaintiffs failed to satisfy the criteria necessary to restore the case to the calendar and granted defendants' motions dismissing the complaint.Plaintiffs appeal.

This matter is not properly before this court and we decline to address the arguments raised as to the propriety of Supreme Court's dismissal.A dismissal made pursuant to CPLR 3404 constitutes a default and no appeal lies therefrom (see, Floccuzio v. Galli, 239 A.D.2d 819, 657 N.Y.S.2d 542, lv. dismissed91 N.Y.2d 848, 667 N.Y.S.2d 684, 690 N.E.2d 493;see also, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book7B, CPLR C3404:5, at 76).Absent a motion to vacate the default and a denial thereof, an appeal will not lie (see, Matter of Hurst v. Hurst, 227 A.D.2d 689, 642 N.Y.S.2d 561).

ORDERED that the order is affirmed, without costs.

CREW, WHITE and YESAWICH, JJ., concur.

CARDONA, Presiding Justice (dissenting).

I respectfully dissent.Initially, I would deem plaintiffs' pro se affidavits submitted in opposition to defendants' motions to dismiss both an application to restore the case to the trial calendar and to vacate the CPLR 3404 dismissal (see, Merrill v. Robinson, 99 A.D.2d 578, 470 N.Y.S.2d 960;see also, Malpass v. Mavis Tire Supply Corp., 143 A.D.2d 890, 533 N.Y.S.2d 397).In my opinion, the instant appeal should be treated as one from the denial of the motion to vacate the dismissal.It is settled law that "[t]o prevail on a CPLR 3404 motion, the movant must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter and the lack of prejudice to the nonmoving party in the event the case is restored to the trial calendar"(Elliot v. Nyack Hosp., 204 A.D.2d 958, 612 N.Y.S.2d 271;see, Floccuzio v. Galli, 239 A.D.2d 819, 820, 657 N.Y.S.2d 542, lv. dismissed91 N.Y.2d 848, 667 N.Y.S.2d 684, 690 N.E.2d 493;Krantz v. Scholtz, 201 A.D.2d 784, 785, 607 N.Y.S.2d 183, appeal dismissed83 N.Y.2d 902, 614 N.Y.S.2d 383, 637 N.E.2d 274).

Plaintiffs offered documentary evidence from the State Department of Environmental Conservation and defendantTown of Niskayuna that defendantsFred Jackson, Alexander Jackson and Jackson Demolition Inc.(hereinafter collectively referred to as Jackson Demolition) had been notified that it was operating a landfill in violation of local and State laws.That evidence also showed that trucks carrying demolition debris continually passed around plaintiffs' house which adjoined Jackson Demolition's property, raising clouds of dust and creating noise that penetrated inside plaintiffs' residence.The allegations, if proven, would demonstrate that Jackson Demolition intentionally, unreasonably and substantially interfered with plaintiffs' enjoyment of their property (see, Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968;Langan v. Bellinger, 203 A.D.2d 857, 857-858, 611 N.Y.S.2d 59), and therefore set forth meritorious causes of action based upon continuing nuisance.

As a reasonable excuse for the delay in making a motion to restore the...