Sal Masonry Contractors, Inc. v. Arkay Const. Corp.

• Decision Date: 24 September 1975
• Citation: Sal Masonry Contractors, Inc. v. Arkay Const. Corp., 373 N.Y.S.2d 424, 49 A.D.2d 808 (N.Y. App. Div. 1975)
• Parties: SAL MASONRY CONTRACTORS, INC., Respondent, v. ARKAY CONSTRUCTION CORPORATION and Seaboard Surety Company, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 424

373 N.Y.S.2d 424

49 A.D.2d 808

SAL MASONRY CONTRACTORS, INC., Respondent, v. ARKAY CONSTRUCTION CORPORATION and Seaboard Surety Company Appellants.

Supreme Court, Appellate Division, Fourth Department.

Sept. 24, 1975.

Nestor, Nestor, Totolis & Shamulka, Theo J. Tololis, Endicott, for appellants.

M. Carl Levine, Morgulas & Foreman, Frederick Cohen, New York City, for respondent.

Before MARSH, P.J., and MOULE, CARDAMONE, DEL VECCHIO and WITMER, JJ.

MEMORANDUM:

Plaintiff's motion to restore this case to the calendar was granted at Special Term On October 25, 1973 it was marked off the calendar when neither party appeared for a pretrial conference, apparently because the case was the properly listed in a law journal. No motion was made under the provisions of 22 NYCRR 1024.13 within one year for its restoration to the calendar, explaining its previous disposition, stating meritorious reasons for its restoration and that it was ready for trial. Consequently, it was deemed abandoned and dismissed pursuant to CPLR 3404.

When a case has been abandoned and dismissed a motion to open the default and restore it to the calendar will require the same kind of proof of merit, lack of prejudice to the opposing party and excusable neglect as must be shown to open a default. (McIntire Associates, Inc. v. Glens Falls Insurance Company, 41 A.D.2d 692, 342 N.Y.S.2d 819; Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181...