Pirnak v. Savino

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER
• Citation: Pirnak v. Savino, 465 N.Y.S.2d 773, 96 A.D.2d 857 (N.Y. App. Div. 1983)
• Decision Date: 08 August 1983
• Parties: Katherine PIRNAK, Respondent, v. Michael J. SAVINO, et al., Appellants, et al., Defendant.

Page 773

465 N.Y.S.2d 773

96 A.D.2d 857

Katherine PIRNAK, Respondent, v. Michael J. SAVINO, et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Aug. 8, 1983.

Sheehan, Hockett, Jennings & Ponzan, Lake Success (Joseph D. Ahearn and Michael Majewski, New York City, of counsel), for appellants.

Baron & Vessel, Forest Hills (Bernard Meyerson, Forest Hills, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendants Michael Savino, Thomas Savino and Savco Holding Company appeal from an order of the Supreme Court, Queens County, dated August 4, 1982, which granted plaintiff's motion to vacate the dismissal of this action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Order modified, as a matter of discretion, by adding thereto a provision conditioning the granting of the motion upon payment of $750 personally by plaintiff's attorney to the appellants. As so modified, order affirmed, without costs or disbursements. Plaintiff's attorney's time to comply with this condition is extended to 15 days after service upon plaintiff's attorney of a copy of the order to be made hereon, with notice of entry.

When plaintiff prematurely filed a note of issue, appellants moved to strike the case from the trial calendar in order to conduct pretrial disclosure. By order dated August 5, 1980, the Supreme Court granted the motion, struck the case from the calendar and directed plaintiff to appear at an examination before trial and to submit to a physical examination by a doctor to be chosen by the appellants. The order also specified that upon completion of pretrial proceedings the matter could be restored to the trial calendar. The physical examination was conducted in September, 1980, and the deposition was completed on October 27, 1980. However, when plaintiff failed to restore the matter to the trial calendar, it was dismissed by the Clerk of the Court in August, 1981. No further activity was undertaken in the case until April, 1982, when appellants served the plaintiff with a copy of the judgment dismissing the complaint. Thereafter, in June, 1982, plaintiff moved to vacate the judgment and to restore the case to the trial calendar. Trial Term granted the motion.

When a plaintiff fails to restore a case to the trial calendar within one year after it was marked off the calendar, there is a presumption that...