Malpass v. Mavis Tire Supply Corp.

• Decision Date: 24 October 1988
• Citation: Malpass v. Mavis Tire Supply Corp., 533 N.Y.S.2d 397, 143 A.D.2d 890 (N.Y. App. Div. 1988)
• Parties: Charles U. MALPASS, et al., Respondents, v. MAVIS TIRE SUPPLY CORPORATION, et al., Appellants, et al., Defendant. Second Department
• Court: New York Supreme Court — Appellate Division

Page 397

533 N.Y.S.2d 397

143 A.D.2d 890

Charles U. MALPASS, et al., Respondents, v. MAVIS TIRE SUPPLY CORPORATION, et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Oct. 24, 1988.

Wilson, Bave, Conboy & Bave, P.C., White Plains (Daniel A. Seymour, of counsel), for appellants.

William Greenberg, White Plains, for respondents.

Before THOMPSON, J.P., and BROWN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants Mavis Tire Supply Corporation and Marvin G. French, Jr., appeal from an order of the Supreme Court, Westchester County (Gurahian, J.), entered November 12, 1987, which denied their motion to dismiss the action as against them on the ground of the plaintiffs' failure to timely move to restore their case to the trial calendar and granted the plaintiffs' cross motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

Under CPLR 3404, an action stricken from the calendar and not restored within one year thereafter is deemed abandoned and is automatically dismissed for failure to prosecute (see Curtin v. Grand Union Co., 124 A.D.2d 918, 508 N.Y.S.2d 333; 3 Park Ave. Co. v. New York City Educ. Constr. Fund, 109 A.D.2d 656, 486 N.Y.S.2d 245, appeal dismissed 65 N.Y.2d 785). After expiration of the one-year period, the court has the discretionary power to restore the case to the trial calendar if the movant establishes the merits of his cause of action, a reasonable excuse for the delay, lack of intent to deliberately default or abandon the action and a lack of prejudice to the nonmoving party if the case is reopened (see, Tucker v. Hotel Employees & Rest. Employees Union, Local 100 of N.Y. & Vicinity, AFL-CIO, 134 A.D.2d 494, 521 N.Y.S.2d 279; Orenstein v. Kentucky Fried Chicken of Great Neck, 121 A.D.2d 610, 503 N.Y.S.2d 643).

We find that the plaintiffs succeeded in sustaining their burden. The cross motion to restore the case to the trial calendar, which we deem a motion both to vacate the automatic dismissal and to restore the case to the trial calendar (see, Merrill v. Robinson, 99 A.D.2d 578, 470 N.Y.S.2d 960), was made on or about October 1, 1987, a delay of nearly 17 months from the time the case was marked off the calendar and over four years after the action was commenced. On March 27, 1987, an order was entered relieving the plaintiffs' then counsel and staying for 30 days all proceedings in the action. Although the order with notice of entry was served upon the appellants, there is no evidence that the...