Todd Co. v. Birnbaum

• Decision Date: 16 April 1992
• Citation: Todd Co. v. Birnbaum, 582 N.Y.S.2d 414, 182 A.D.2d 505 (N.Y. App. Div. 1992)
• Parties: TODD COMPANY, Plaintiff-Appellant, and Counterclaim Defendant-Appellant, v. Jay BIRNBAUM, Defendant-Respondent, and Victoria Birnbaum, etc., et al., Defendant and Crossclaim Defendant, et al., Defendants. Michael Fromer, Counterclaim-Defendant-Appellant, et al., Counterclaim Defendant.
• Court: New York Supreme Court — Appellate Division

Page 414

582 N.Y.S.2d 414

182 A.D.2d 505

TODD COMPANY, Plaintiff-Appellant, and CounterclaimDefendant-Appellant, v.Jay BIRNBAUM, Defendant-Respondent and Victoria Birnbaum, etc., et al., Defendant and CrossclaimDefendant, et al., DefendantsMichael Fromer, Counterclaim-Defendant-Appellant, et al.CounterclaimDefendant.

Supreme Court, Appellate Division First Department.

April 16, 1992.

Before MURPHY, P.J., and CARRO, WALLACH, ROSS and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Martin Evans, J.), entered March 7, 1991, which granted the motion of defendant, counterclaimant and crossclaimant Jay Birnbaum to vacate the automatic dismissal of the action and restore it to the calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, with costs, the motion is denied, and the action is dismissed in its entirety.The Clerk is directed to enter judgment dismissing the action in its entirety, with costs.

PlaintiffTodd Company commenced an interpleader action in 1982 to determine the ownership of certain funds deposited in plaintiff's bank account.Various defendants, including Jay Birnbaum(Jay), asserted counterclaims and crossclaims alleging conflicting ownership interests in the funds.On April 21, 1988, Jay filed a note of issue.On June 20, 1988, the action was stricken from the trial calendar on plaintiff's motion.Nothing was done to restore the case to the calendar within a year of that order, and as a result the case was automatically deemed abandoned and dismissed by operation of CPLR 3404.In November, 1990, 29 months after the case was stricken from the calendar, Jay moved to vacate the dismissal and restore the case to the calendar, over opposition of the counterclaim defendantsTodd Company and Michael Fromer, and the crossclaim defendant(now deceased)Saul Birnbaum.

An action dismissed pursuant to CPLR 3404 may only be restored upon a showing of a meritorious cause of action, a reasonable excuse for the delay, a lack of prejudice to the opposing parties, and a lack of intent to abandon the action (Moye v. City of New York, 168 A.D.2d 342, 562 N.Y.S.2d 664appeal dismissed, 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54;Mamet v. Mamet, 132 A.D.2d 479, 518 N.Y.S.2d 5lv. denied, 70 N.Y.2d 611, 523 N.Y.S.2d 495, 518 N.E.2d 6).All the above components must be satisfied in order for the dismissal to be properly vacated (Ornstein v. Kentucky Fried Chicken, 121 A.D.2d 610, 503 N.Y.S.2d 643).

The unexplained failure of Jay's several attorneys to have attended to this matter during the 29 months since the case was marked off the calendar does not constitute a reasonable excuse for the delay (La Froscia Constr. Corp. v. City of Yonkers, 140 A.D.2d 496, ...