Gray v. Sandoz Pharmaceuticals, Div. of Sandoz, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: Gray v. Sandoz Pharmaceuticals, Div. of Sandoz, Inc., 551 N.Y.S.2d 551, 158 A.D.2d 583 (N.Y. App. Div. 1990)
• Decision Date: 20 February 1990
• Parties: Charles L. GRAY, Respondent, v. SANDOZ PHARMACEUTICALS, DIVISION OF SANDOZ, INC., et al., Appellants, et al., Defendant; Nina Woodrow, Third-Party Defendant-Appellant.

Page 551

551 N.Y.S.2d 551

158 A.D.2d 583

Charles L. GRAY, Respondent, v. SANDOZ PHARMACEUTICALS, DIVISION OF SANDOZ, INC., et al Appellants, et al., Defendant Nina Woodrow, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1990.

Costello & Shea, New York City (Scott M. Karpel, of counsel), for appellant Sandoz Pharmaceuticals, Div. of Sandoz, Inc.

Gordon & Silber, P.C., New York City (David Henry Sculnick, of counsel), for appellant Antoinette C. Carey.

Schiavetti, Begos & Nicholson, New York City (Lori Ann Marano, of counsel), for third-party defendant-appellant.

Julien & Schlesinger, P.C., New York City (David B. Turret and Mary Elizabeth Burns, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants Antoinette Carey and Sandoz Pharmaceuticals, Division of Sandoz, Inc., and the third-party defendant Nina Woodrow separately appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 3, 1988, which denied their respective motions to dismiss the plaintiff's complaint, and granted the plaintiff's cross motion to (1) vacate a prior order of the same court dated April 25, 1988, dismissing the complaint, and (2) restore the case to the trial calendar.

ORDERED that the order is reversed, on the law, with one bill of costs, the appellants' motions are granted, and the plaintiff's cross motion is denied.

This matter was originally marked off the trial calendar on May 24, 1983, because discovery had not been completed. The plaintiff made two attempts to restore the case in May and August 1984. The first motion was denied because physical and psychiatric examinations of the plaintiff had still not been conducted. The second motion was denied with leave to renew upon the appointment of a personal representative of the recently deceased defendant Morris Woodrow. All activity in the action stopped on October 27, 1986, with this court's affirmance of the denial of the third-party defendant's motion to dismiss the third-party complaint (see, Gray v. Sandoz Pharms., Div. of Sandoz, Inc., 123 A.D.2d 829, 507 N.Y.S.2d 444). On April 25, 1988, the action was dismissed pursuant to CPLR 3404 for failure to prosecute.

CPLR 3404 provides that a case stricken from the calendar and not restored within one year thereafter shall be deemed abandoned and shall be dismissed for neglect to prosecute. Restoration, after the expiration of one year, is within the court's discretion. However, the plaintiff must establish...