Leonardelli v. the Presbyterian Hosp. in Ny

• Decision Date: 20 November 2001
• Docket Number: 1,4915
• Parties: JOSEPH LEONARDELLI,, v. THE PRESBYTERIAN HOSPITAL IN THE CITY OF NEW YORK,/, v. MEROLA ASSOCIATES, THIRD-PARTY. 4915 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

JOSEPH LEONARDELLI, PLAINTIFF-APPELLANT v THE PRESBYTERIAN HOSPITAL IN THE CITY OF NEW YORK, DEFENDANT-RESPONDENT/ THIRD-PARTY PLAINTIFF-RESPONDENT v MEROLA ASSOCIATES, THIRD-PARTY DEFENDANT-RESPONDENT.

4915

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

November 20, 2001

Brian J. Isaac - for plaintiff-appellant,

Edward J. Guardaro, Jr. - for defendant-respondent/third-party plaintiff-respondent,

Daniel A. Seymour - for third-party defendant-respondent.

Nardelli, J.P., Lerner, Rubin, Saxe, Marlow, JJ.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 3, 2000, which denied plaintiff's motion to restore the action to the trial calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted, the CPLR 3404 dismissal vacated, and the action restored to the trial calendar.

The motion court apparently assumed that the automatic dismissal of the action on August 3, 1999, pursuant to CPLR 3404, eliminated the court's discretion to consider restoring the case to the calendar, since it reasoned that there was no longer a matter currently before the court. This was incorrect.

Although a case which has been marked off or stricken from the calendar and not restored within one year is deemed abandoned and is dismissed (CPLR 3404), the statute only creates a rebuttable presumption of abandonment (Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720, appeal dismissed, 69 N.Y.2d 874). A party may restore a case to the trial calendar after it was dismissed pursuant to CPLR 3404, upon a showing of: 1) a meritorious claim, 2) a reasonable excuse for the delay, 3) an absence of prejudice to the adverse party, and 4) a lack of intent to abandon the case (Ware v Porter, 227 A.D.2d 214). The underlying legislative intent of CPLR 3404 was to strike "actually dead" cases (Weiss v City of New York, 247 A.D.2d 239, 240), and consequently we look, not to technicalities, but rather to the totality of the circumstances (see, McGuire v Tishman Constr. Corp. of Manhattan, 275 A.D.2d 249).

Plaintiff's bill of particulars and verified complaint allege sufficient detailed facts to establish that the case has merit, especially since the opposing affidavits offer nothing to dispute the merit of the cause of action (see, Ronsco Constr. Co. v 30 East 85th St. Co., 219 A.D.2d 281, 284; see also, Nicholos v Cashelard, 249 A.D.2d 187, 189).

As to the excuse for the delay, and the lack of intent to abandon the case, we note that (1) discovery had been completed, (2) the record fails...