Solow v. Stuart
| Decision Date | 23 January 1996 |
| Citation | 637 N.Y.S.2d 68,223 A.D.2d 458 |
| Parties | Sheldon H. SOLOW, etc., Plaintiff-Respondent, v. Jill STUART, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
P.D. Goldstein, for plaintiff-respondent.
G. De Simone, for defendant-appellant.
Before SULLIVAN, J.P., and WALLACH, RUBIN, KUPFERMAN and MAZZARELLI, JJ.
Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about June 9, 1994, which granted plaintiff's motion for summary judgment on its first and third causes of action, dismissed defendant's second and third counterclaims and directed entry of judgment on the first cause of action in the amount of $24,753.25 and an inquest on the remaining causes of action, unanimously affirmed, with costs.
Although failure to restore a matter to the calendar after it is automatically marked off pursuant to CPLR 3404 ordinarily leads to an automatic and self-executing dismissal (see, 3 Park Ave. Co. v. New York City Educ. Constr. Fund, 109 A.D.2d 656, 486 N.Y.S.2d 245, appeal dismissed 65 N.Y.2d 785), the presumption of abandonment (see, Condro v. Jhaveri, 154 A.D.2d 646, 647, 546 N.Y.S.2d 652, lv. dismissed 75 N.Y.2d 896, 554 N.Y.S.2d 830, 553 N.E.2d 1340), is rebuttable (see, CCS Communication Control v. Patent, 193 A.D.2d 435, 597 N.Y.S.2d 330) and plaintiff made a sufficient showing here based upon the parties' stipulation (see, Sannella v. Plainview Fire Dept., 136 A.D.2d 617, 523 N.Y.S.2d 593). Moreover, the record demonstrates the action is meritorious, that the excuse for delay is reasonable, that there is no undue prejudice to defendant, and that there was no abandonment by plaintiff (see, Krantz v. Scholtz, 201 A.D.2d 784, 785, 607 N.Y.S.2d 183, lv. dismissed 83 N.Y.2d 902, 614 N.Y.S.2d 383, 637 N.E.2d 274). Defendant does not challenge the substantive merits of the grant of partial summary judgment.
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...that treatment, and an absence of prejudice to defendant attributable to the delay (see, Kassover v Diamonds Run, supra; Solow v. Stuart, 223 A.D.2d 458, 637 N.Y.S.2d 68). We note in the latter regard that the stipulation did not limit the time plaintiff had to serve an amended bill of part......