General Staple Co., Inc. v. Amtronics, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before HOPKINS; HOPKINS; WEINSTEIN
• Citation: General Staple Co., Inc. v. Amtronics, Inc., 439 N.Y.S.2d 166, 81 A.D.2d 877 (N.Y. App. Div. 1981)
• Decision Date: 18 May 1981
• Parties: GENERAL STAPLE CO., INC., Respondent, v. AMTRONICS, INC. et al., Appellants; The New Jersey Wire Stitching Machine Co., additional Defendant on counterclaim.

Page 166

439 N.Y.S.2d 166

81 A.D.2d 877

GENERAL STAPLE CO., INC., Respondent, v. AMTRONICS, INC. et al., Appellants; The New Jersey Wire Stitching Machine Co., additional Defendant on counterclaim.

Supreme Court, Appellate Division Second Department.

May 18, 1981.

Irving L. Gartenberg, New York City (Ira M. Schulman, New York City, of counsel), for appellants.

Bell, Wolkowitz, Kalnick, Klee, Green & Beckman, New York City (Barry R. Fertel and Allen Green, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and MANGANO, GIBBONS, MARGETT and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action for injunctive relief, an accounting, money damages, and other relief based upon, inter alia, alleged unfair competition and breach of agreements not to reveal trade secrets, which was dismissed pursuant to CPLR 3404, defendants appeal (1) from an order of the Supreme Court, Kings County, dated December 26, 1979, which granted plaintiff's motion to vacate the dismissal of the action and restore the action to the calendar, on condition that plaintiff's attorneys pay $150 to each of the other parties and (2) as limited by their brief, from so much of a further order of the same court, dated March 20, 1980, as, upon reargument, adhered to the original determination.

Appeal from order dated December 26, 1979 dismissed, without costs or disbursements. Said order was superseded by the order dated March 20, 1980.

Order dated March 20, 1980 affirmed insofar as appealed from, without costs or disbursements.

Special Term did not abuse its discretion in conditionally granting plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3404 and restore the action to the calendar (see Matter of Levine 32 A.D.2d 778, 302 N.Y.S.2d 272). While our dissenting colleagues place much weight upon the period of time that has elapsed between the commencement of this action and the present date, that is not the determinative period to be considered on a motion such as this one (see, e. g., Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392). Rather, the more crucial period is the period of time between the dismissal of the action pursuant to CPLR 3404 and the making of plaintiff's motion to restore. Here, that period was less than two months. In contrast, in the cases cited by the dissent, those periods, to the extent discernible, were 31 months (Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745), 20 months (Omar v. David Fruit & Co., 59 A.D.2d 647, 398 N.Y.S.2d 300), 12 months (Hickey v. Shumacher, 54 A.D.2d 790, 387 N.Y.S.2d 746) and 8 months (Dunne v. McGuirk, 62 A.D.2d 1080, 403 N.Y.S.2d 828). Further, there is evidence in the record that this case came to be marked off the calendar not out of neglect by plaintiff, but out of plaintiff's willingness to permit the additional defendant on the defendants' counterclaim, which had moved to strike the action in order to permit it to complete discovery, to have an opportunity to do so. It also should be noted that the defendants supported that motion to strike, stating that "action is not ready for trial" since discovery had not been completed. The defendants also stated that they would seek additional discovery after the additional defendant had completed its discovery. Moreover, some eight months after the case was marked off the calendar, the additional defendant inspected documents in plaintiff's possession, apparently pursuant to its notice for discovery and inspection. Upon the basis of all of these circumstances, Special Term did not err in concluding that the action had not been abandoned.

While the affidavit of plaintiff's president submitted in support of the motion to restore the action to the calendar merely refers to the complaint, we conclude that the affidavit and complaint, read together, constitute a sufficient affidavit of merits in light of the nature of the complaint (see CPLR 2001). The complaint, which is 17 pages in length, is composed primarily of detailed factual allegations, many of which are apparently based upon the personal knowledge of plaintiff's president. He was apparently in a position to be aware of the alleged activities of defendants Magnifico and Garfinkel and their impact upon plaintiff's business, not only because of the office he held, but also because Magnifico, Garfinkel and he allegedly constituted the entire executive staff for the manufacture and sale of the type of equipment and supplies involved in this action. In addition, annexed to the complaint are written agreements bearing the purported signatures of Garfinkel and Magnifico, which appear to prohibit the conduct in which these defendants are alleged to have engaged. Thus, plaintiff has made a sufficient showing of merit (see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3404.06).

HOPKINS, J. P., and GIBBONS and MARGETT, JJ., concur.

WEINSTEIN, Justice, concurs insofar as the appeal from the order dated ...