Krantz v. Scholtz
Decision Date | 03 February 1994 |
Citation | 201 A.D.2d 784,607 N.Y.S.2d 183 |
Court | New York Supreme Court — Appellate Division |
Parties | Everett J. KRANTZ et al., Respondents, v. Evi SCHOLTZ et al., Defendants, and Albert Mendel & Sons Inc. et al., Appellants. |
Spiegel, Pergament & Brown (Cynthia K. Fichera, of counsel), Poughkeepsie, for Albert Mendel & Sons Inc. and another, appellants.
O'Keeffe, Kline & McCaffrey (Curtiss B. Kline, of counsel), White Plains, for Kent T. Kay, appellant.
Stephen L. Oppenheim, Monticello, for Everett J. Krantz and another, respondents.
Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin (Christine M. Galvin, of counsel), Schenectady, for William Spratt and another, respondents.
Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.
MIKOLL, Justice Presiding.
Appeal from an order of the Supreme Court (Williams, J.), entered March 12, 1993 in Sullivan County, which granted plaintiffs' motion to vacate a judgment entered against them.
Plaintiffs commenced an action in January 1981 to recover damages against defendants for the sale of allegedly diseased cattle to plaintiffs. Plaintiffs served a second complaint in November 1981. Separate motions to dismiss the first complaint and portions of the second complaint were denied by Supreme Court in January 1982. This court reversed and dismissed the first complaint as untimely (89 A.D.2d 762, 454 N.Y.S.2d 47, aff'd 60 N.Y.2d 667, 468 N.Y.S.2d 99, 455 N.E.2d 658); however, the second complaint remained viable. Further proceedings were had, including some discovery, and a motion by defendant for summary judgment was denied. In early December 1989, certain defendants appealed the denial of the summary judgment motion and Supreme Court removed this case from the calendar. In February 1991 the appeals were deemed abandoned and dismissed by this court. Supreme Court apparently indicated at a December 9, 1991 conference that plaintiffs' lawsuit had been dismissed and suggested that a motion be made by plaintiff to vacate the dismissal. Defendants presented plaintiffs with an offer to settle in the fall of 1989. However, it is unclear whether the offer was withdrawn at the December 9, 1991 conference. Plaintiffs' counsel, by letter dated September 1, 1992, requested a conference with defendants. A judgment deeming plaintiffs' lawsuit abandoned was entered September 3, 1992 in favor of defendants. Plaintiffs then moved to vacate the judgment and Supreme Court granted the motion. Defendants Kent T. Kay, Albert Mendel & Sons Inc. and Ernest Mendel (hereinafter collectively referred to as defendants) appeal.
Defendants' contention that Supreme Court improperly vacated the judgment dismissing plaintiffs' lawsuit as abandoned because three years expired after the automatic dismissal of the action and the date plaintiffs filed their motion to vacate the judgment of dismissal is well taken. The motion to vacate the dismissal of an action pursuant to CPLR 3404 and restore the action to the calendar is addressed to the sound discretion of the trial court (Greco v. Aetna Life Ins. Co., 180 A.D.2d 664, 580 N.Y.S.2d 878; O'Boye v. Consolidated Edison of N.Y., 168 A.D.2d 219, 562 N.Y.S.2d 106). Four factors must be proved to exist to warrant vacatur of a judgment of dismissal and restoration of a case deemed abandoned to the trial calendar under CPLR 3404. A plaintiff must demonstrate (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) the absence of prejudice to the defendant if the action is restored to the calendar, and (4) no intent to abandon the action (see, Knight v. City of New York, 193 A.D.2d 720, 721, 597 N.Y.S.2d 737; Todd Co. v. Birnbaum, 182 A.D.2d 505, 582 N.Y.S.2d 414; Perez v. New York City Hous. Auth., 182 A.D.2d 416, 582 N.Y.S.2d 150). Plaintiffs satisfied three of the above four requirements but failed to demonstrate by affirmative proof that defendants would suffer no prejudice if the action was restored to...
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