Resto v. Kohen

• Decision Date: 17 November 1986
• Citation: Resto v. Kohen, 508 N.Y.S.2d 228, 124 A.D.2d 722 (N.Y. App. Div. 1986)
• Parties: Maria RESTO a/k/a Maria Munoz, etc., Respondent, v. Nuri KOHEN, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 228

508 N.Y.S.2d 228

124 A.D.2d 722

Maria RESTO a/k/a Maria Munoz, etc., Respondent, v.Nuri KOHEN, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 17, 1986.

Heidell, Pittoni, Murphy & Bach, P.C., New York City(Austa S. Devlin and Louise A. Derevlany, on the brief), for appellants.

Rudy Hirschheimer, Kew Gardens, for respondent.

Before BROWN, J.P., and RUBIN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County(Lerner, J.), dated October 24, 1985, which, inter alia, granted the plaintiff's motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and restored the action to the trial calendar.

ORDERED that the order is reversed, in the exercise of discretion, without costs or disbursements, the plaintiff's motion to vacate the dismissal of the action is denied, the action is stricken from the calendar, and the order dismissing the action is reinstated.

This action was commenced by the plaintiffMaria Resto a/k/a Maria Munoz, to recover damages, on behalf of her then infant son, Manuel Resto and herself, individually, as a result of personal injuries sustained by Manuel on November 8, 1976, when he allegedly fell down a flight of stairs in a two-family residence and store premises owned by the defendants.

In October 1980 the action was marked off the trial calendar because the counsel for the plaintiff and her son had lost contact with them after they had moved to Puerto Rico.Thus, the plaintiff and her son were unavailable to submit to depositions, which were to be held 10...