Nedell v. Sprigman

• Decision Date: 07 May 1996
• Citation: 641 N.Y.S.2d 837,227 A.D.2d 163
• Parties: Maureen NEDELL, Individually and as Administratrix of the Estate of Phillip J. Nedell, Deceased, Plaintiff-Appellant, v. Jason SPRIGMAN, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 837

641 N.Y.S.2d 837

227 A.D.2d 163

Maureen NEDELL, Individually and as Administratrix of the Estate of Phillip J. Nedell, Deceased, Plaintiff-Appellant, v. Jason SPRIGMAN, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

May 7, 1996.

Stephen I. Widlitz, for Plaintiff-Appellant.

Melissa P. Corrado, Sue Figler, for Defendants-Respondents.

Before SULLIVAN, J.P., and MILONAS, ELLERIN, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Suffolk County (William L. Underwood, J.), entered on or about January 30, 1995, which purports to deny plaintiff's motion for reargument of an order dated July 22, 1994 (same court and justice), which denied plaintiff's motion to restore this case to the trial calendar and dismissed the complaint, unanimously reversed, on the law, with costs against each defendant, plaintiff's motion to restore the matter to the trial calendar granted, the complaint reinstated, and the matter remanded for immediate trial.

Motion (M-739) to dismiss this appeal as from a nonappealable order unanimously denied.

It is fundamental that a party may not appeal an order made either without notice (CPLR 5701[a][2] or upon default (CPLR 5511). A party who wishes to contest such an order should move, on notice, to vacate the order pursuant to CPLR 2221(a). "Then an appeal may be taken to [the Appellate Division] from a denial of the motion to vacate" (Matter of Willmark Service System, Inc., 21 A.D.2d 478, 479, 251 N.Y.S.2d 267). Contrary to defendants' contentions, there is no question that the order dismissing plaintiff's complaint pursuant to CPLR 3404, which provides for the automatic dismissal of a case which has been "marked 'off' " the calendar and not restored within one year was not on notice. Indeed, the Second Department dismissed an appeal from that order on precisely that ground. Moreover, the dismissal pursuant to CPLR 3404 was clearly based on plaintiff's alleged default, and is nonappealable on that ground as well (CPLR 5511). Thus, plaintiff, who desired to protest, and, if necessary, appeal from the dismissal of her complaint, followed precisely the correct procedure by moving before the trial court to vacate the prior order. The trial court therefore erred in denominating that motion to vacate as one for "reargument".

Moreover, the court also erred in failing to vacate its prior order dismissing the complaint. A case which is deemed abandoned under CPLR 3404 and dismissed for neglect to prosecute should be restored if, on motion, the plaintiff can show a lack of intent to abandon the action, the existence of a meritorious cause of action, a reasonable excuse for the delay and the lack of substantial prejudice (Kopilas v. Peterson, 206 A.D.2d 460, 614 N.Y.S.2d 562; Roberts v. Town of Hempstead, 206 A.D.2d 466, 614 N.Y.S.2d 569).

In this case, plaintiff's case had been placed on a calendar designated as "marked off, case active [MOCA]" with the consent of all parties during the pendency of two...