La Froscia Const. Corp. v. City of Yonkers

• Decision Date: 16 May 1988
• Citation: La Froscia Const. Corp. v. City of Yonkers, 528 N.Y.S.2d 604, 140 A.D.2d 496 (N.Y. App. Div. 1988)
• Parties: LA FROSCIA CONSTRUCTION CORP., Appellant, v. The CITY OF YONKERS, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 604

528 N.Y.S.2d 604

140 A.D.2d 496

LA FROSCIA CONSTRUCTION CORP., Appellant, v. The CITY OF YONKERS, et al., Respondents.

Supreme Court, Appellate Division Second Department.

May 16, 1988.

Abraham Ross, P.C., Floral Park, for appellant.

Jay B. Hasmall, Corp. Counsel, Yonkers, for respondent The City of Yonkers.

Stockfield & Fixler, Carmel (Robert W. Folchetti, of counsel), for respondent Artko Wrecking Co., Inc.

Before WEINSTEIN, J.P., and SPATT, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for the allegedly illegal demolition of two buildings, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated December 17, 1986, which denied its motion to vacate an automatic dismissal entered pursuant to CPLR 3404 and to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

Restoration of a case to the trial calendar subsequent to an automatic dismissal pursuant to CPLR 3404 requires the movant to establish the merit of the action, an excuse for the delay, lack of intention to abandon the action and a lack of prejudice to the non-moving parties ( see, Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392, rearg. denied 11 N.Y.2d 766, 798, 227 N.Y.S.2d 16, 181 N.E.2d 761; Hammer v. Hochberg, 128 A.D.2d 834, 513 N.Y.S.2d 708; Ornstein v. Kentucky Fried Chicken of Great Neck, 121 A.D.2d 610, 503 N.Y.S.2d 643).

In the instant case, the plaintiff did not tender any excuse for counsel's failure to appear for trial on the date the action was marked off the trial calendar and the proffered excuse for the delay in moving to restore the action was inadequate. Here, the presumption that an action dismissed pursuant to CPLR 3404 has been abandoned was not rebutted by a disputed oral understanding between the parties, pursuant to which the defendants'...