Opinion
June 29, 1981
In a negligence action to recover damages for personal injuries, etc., plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Gagliardi, J.), dated July 25, 1980, which denied his motion to restore the action to the Trial Calendar, and (2) an order of the same court, entered October 8, 1980, which, inter alia, denied his motion to reargue the prior motion. Order dated July 25, 1980 is reversed, without costs or disbursements, plaintiff's motion to restore the action to the Trial Calendar is granted, a general preference is granted, and order entered October 8, 1980 is reversed insofar as defendant's cross motion to vacate an order of Justice Sullivan dated May 29, 1978 was referred to that Justice for determination, without costs or disbursements, and the cross motion is denied, all upon the condition that plaintiff post the required security for costs as set forth in an order dated February 27, 1979 within 30 days after service upon him of a copy of the order to be entered hereon, with notice of entry. In the event that plaintiff fails to comply with the condition, order dated July 25, 1980 and that part of the order entered October 8, 1980, which involves defendant's cross motion are affirmed, with one bill of $50 costs and disbursements. Appeal from the order entered October 8, 1980, dismissed insofar as it involves the denial of plaintiff's motion to reargue, without costs or disbursements. No appeal lies from the denial of reargument. Special Term's denial of the plaintiff's motion to restore the instant action to the Trial Calendar was predicated ultimately on the fact "that the action was dismissed on June 1, 1979, pursuant to CPLR 3404 (Dismissal of abandoned cases)". The June 1, 1979 dismissal was improper. The record contains an order of the Supreme Court, Westchester County (Sullivan, J.), dated May 29, 1978, which transferred the action from the County Court to the Supreme Court as well as an order of the Supreme Court, Westchester County (Ruskin, J.), dated December 19, 1978, which, inter alia, denied a motion by plaintiff for summary judgment and denied a cross motion by defendant, inter alia, to transfer the action back to the County Court. In view of the dates of these orders, a dismissal on June 1, 1979 of the action on the ground of abandonment was unjustified. Defendant's cross motion to vacate the order of Justice Sullivan dated May 29, 1978, which granted plaintiff's motion to transfer the action to the Supreme Court, shall be denied and a general preference granted to plaintiff. Plaintiff has twice established, once before Justice Sullivan and once before Justice Ruskin, that the action belongs in the Supreme Court. We reject defendant's contention that his motion to vacate the order of Justice Sullivan is timely because plaintiff never served him with a copy of that order with notice of entry. Even if it be true that plaintiff failed to so serve defendant, defendant nevertheless later cross-moved, when plaintiff moved for summary judgment, to transfer the action back to County Court. Plaintiff appealed from so much of the order of Justice Ruskin as denied summary judgment. Defendant's failure to cross-appeal from so much of the same order as denied his cross motion to transfer the action forecloses further consideration of that application. Lazer, J.P., Mangano, Gibbons and Margett, JJ., concur.