Opinion
No. 196 SSM 28.
Decided September 11, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 17, 2008. The Appellate Division affirmed an order of the Supreme Court, New York County (Charles E. Ramos, J.), which had granted defendant's motion to dismiss the action as abandoned unless plaintiff paid defendant's attorney $1,000 and granted plaintiffs cross motion to restore the action to the trial calendar upon the same condition. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
Plaintiff filed a note of issue in a breach of contract action in July 2004. In May 2005, Supreme Court struck the action from the trial calendar based on plaintiffs counsel's failure to appear at four pretrial conferences. In January 2007, defendant moved to dismiss the action based on plaintiffs failure to move to restore the action within one year. Plaintiff cross-moved to restore the action.
Okun v Tanners, 47 AD3d 475, reversed.
Rosenberg Feldman Smith, LLP, New York City ( Michael H. Smith and Richard B. Feldman of counsel), for appellant.
Shaw, Licitra, Gulotta, Esernio Henry, PC, Garden City ( Thomas M. Hoey, Jr., of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, plaintiffs cross motion to restore the action to the calendar denied and defendant's motion to dismiss the action as abandoned dismissed as unnecessary. The certified question should be answered in the negative.
Under the circumstances, plaintiffs conclusory and unsubstantiated claim of law office failure does not constitute a reasonable excuse for the 20-month delay in pursuing the action. Further, plaintiffs inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.