Goodstein Construction Corp. v. City of N.Y

Full title: GOODSTEIN CONSTRUCTION CORP. et al., Respondents, v. CITY OF NEW YORK…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 10, 1998

248 A.D.2d 166 (N.Y. App. Div. 1998)

670 N.Y.S.2d 770

Opinion

March 10, 1998

Appeal from the Supreme Court, New York County (Fern Fisher-Brandveen, J.).

The motion to vacate dismissal of the action pursuant to CPLR 3404 was properly granted in light of the plaintiff's excusable lack of awareness that the case had been marked off the calendar at a time when an appeal was pending before the Court of Appeals, the activity during the period the case: was off calendar, the lack of prejudice to defendant as a result of the delay in restoring the case, and the merit to the cause of action (see, Endres v. Mingles Rest., 242 A.D.2d 455).

The denial of the motion for renewal based upon the incapacity of Mr. Gleidman was proper since there was evidence that this witness, as well as a number of other witnesses privy to the same information, had already been deposed.

Concur — Nardelli, J. P., Tom, Mazzarelli, Andrias and Saxe, JJ.