Opinion
Argued September 29, 2000.
October 30, 2000.
In an action to recover damages for breach of a performance bond, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 21, 1999, which granted the motion of the defendant Aetna Fire Underwriters Insurance Co. to dismiss the action as abandoned pursuant to CPLR 3404, and denied its cross motion, inter alia, to restore the action to the trial calendar.
Barry B. LePatner Associates, LLP, New York, N.Y. (David J. Pfeffer of counsel), for appellant.
Gottesman, Wolgel, Secunda, Malamy Flynn, P.C., New York, N Y (Kenneth W. Malamy of counsel), for respondents CIGNA Fire Underwriters Insurance Company and CIGNA Property and Casualty Insurance Company, s/h/a Aetna Fire Underwriters Insurance Co., a/k/a CIGNA Insurance Co., and Aetna Insurance Co.
Before: CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted the motion to dismiss the action pursuant to CPLR 3404. The plaintiff failed to appear for calendar call on November 23, 1994, and the case was marked off the calendar that day. The action was automatically dismissed pursuant to CPLR 3404 one year later. The entry of a certificate of dismissal was unnecessary, as it is merely a ministerial act (see, Rosser v. Scacalossi, 140 A.D.2d 318; Curtin v. Grand Union Co., 124 A.D.2d 918).
The plaintiff failed to establish that restoration of the action after such a lengthy delay would not be unduly prejudicial (see, Rosser v. Scacalossi, supra; Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720).
The plaintiff's remaining contention is without merit.