Rodriguez v. Hercules Chemical Co.

• Decision Date: 20 June 1996
• Citation: 228 A.D.2d 319,644 N.Y.S.2d 229
• Parties: Linda RODRIGUEZ, as Administratrix of the Estate of Ovidio Vargas, Deceased, Plaintiff-Appellant, v. HERCULES CHEMICAL CO., et al., Defendants. WONDER KING MANUFACTURING CO., INC., Defendant-Respondent/Third-Party Plaintiff, v. J. RICE PLASTIC CONTRACTORS, Third-Party Defendant-Respondent, and Double R. Enterprises, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 229

644 N.Y.S.2d 229

228 A.D.2d 319

Linda RODRIGUEZ, as Administratrix of the Estate of Ovidio

Vargas, Deceased, Plaintiff-Appellant, v. HERCULES CHEMICAL CO., et al., Defendants.

WONDER KING MANUFACTURING CO., INC., Defendant-Respondent/Third-Party Plaintiff, v. J. RICE PLASTIC CONTRACTORS, Third-Party Defendant-Respondent, and Double R. Enterprises, Third-Party Defendant.

Supreme Court, Appellate Division First Department.

June 20, 1996.

Joseph Miklos, for plaintiff-appellant.

Christine Gasser, for defendant-respondent/third-party plaintiff.

Steven R. Harris, for third-party defendant-respondent.

Before MURPHY, P.J., and MILONAS, WALLACH, ROSS and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Charles Ramos, J.), entered May 2, 1995, which denied plaintiff's motion to vacate a CPLR 3404 dismissal of the action and restore it to the calendar, unanimously affirmed, without costs.

Plaintiff attributes the delay to law office failure, which is rarely an acceptable excuse for a failure to seek more expeditiously to vacate a CPLR 3404 dismissal (Robinson v. New York Tr. Auth., 203 A.D.2d 351, 610 N.Y.S.2d 296; see, Hoenig v. Stetefeldt, 127 A.D.2d 632, 511 N.Y.S.2d 658), and is not an acceptable excuse here. Plaintiff's attorney claims that the outside counsel who covered his appearance at the June 1992 pretrial conference never effectively communicated to him that the case was at that time marked off the calendar pending receipt of the Special Referee's report on the Statute of Limitations issue, but instead of taking some affirmative action to find out what was happening with the case, he passively awaited notification of a trial date from the court or his calendar service. The only activity subsequent to the marking off was the Special Referee's report of December 1992, the parties' immediate motions to confirm and reject it, and the August 1993 order confirming the report and dismissing the affected cause of action. Also in August 1993, the case was dismissed pursuant to CPLR 3404. It was not until October 1994, more than two years after the case had been marked off, and more than a year after it had been dismissed, that the instant motion was made. Under the circumstances, the activity relating to the Special Referee's report was not such as to indicate the absence of an intent to abandon the case (cf., Syndicate Bldg. Corp. v. Lorber, 193 A.D.2d 506, 597 N.Y.S.2d 372; CCS Communication Control v. Patent, ...