Opinion
No. 570768/11.
2012-06-26
Jose LUCERO, and infant by his Father and natural guardian, Felipe Lucero and Felipe Lucero, individually, Plaintiffs–Appellants, v. Claudio A. BAEZ, individually and doing business as Claudio Grocery and 931 Fox Street Housing Development Fund Corporation, Defendants, and Zucco Grocery Corp., Defendant–Respondent.
Plaintiffs, as limited by their briefs, appeal from those portions of an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered October 18, 2010, which denied their motion to restore the action to active status and granted defendant Zucco Grocery Corp.'s cross motion to dismiss the complaint for failure to prosecute.
Present: LOWE, III, P.J., SCHOENFELD, HUNTER, JR., JJ.
PER CURIAM.
Order (Ben R. Barbato, J.), entered October 18, 2010, reversed, with $10 costs, complaint reinstated, action restored to active status and matter remanded to Civil Court for further proceedings.
The record shows that plaintiffs' case was not marked off or unanswered on a calendar call, but rather was marked “disposed,” through no fault of plaintiffs, apparently as a result of a clerk's error. In this posture, there was no basis to deny plaintiff's motion to restore, and this regardless of whether the usual prerequisites for restoration were satisfied ( see Fillas v. Hyon Mun Cho, 296 A.D.2d 356 [2002] ). Defendant's cross motion to dismiss the complaint for failure to prosecute should have been denied in the absence of a 90–day demand pursuant to CPLR 3216 (Carino Italian Style, S.R.L. v. Shammah, 266 A.D.2d 1 [1999] ).