Summary
In Campbell v Puntoro (36 A.D.2d 568, 569), the court stated, "Since respondent has made no motion to vacate the automatic dismissal, no action is pending.
Summary of this case from Chem Construction Corp. v. City of New YorkOpinion
January 14, 1971
Appeal from the Niagara Trial Term.
Present — Del Vecchio, J.P., Marsh, Witmer and Moule, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: Respondent's action instituted June 3, 1964 by service of a summons without complaint was marked "off" the Trial Calendar on April 16, 1967 and placed on the general docket. If no action were taken by either of the parties, the case would properly have been subject to automatic dismissal as of April 17, 1968. (CPLR 3404.) Although the respondent on March 4, 1968 by motion on notice to appellants obtained an order from Special Term placing the action back on the Trial Calendar, no affidavit in opposition thereto having been filed by appellants, the order was not filed with the Clerk of Niagara County until January 14, 1969. Thus, no order of restoration having been entered, on April 17, 1968 the clerk marked the case abandoned, and on January 20, 1969, appellants' attorney obtained a certificate from the clerk certifying that the action was an abandoned case. Respondent has not moved to vacate the dismissal and contends that no automatic dismissal should have taken place. Respondent's failure to file the order of restoration with the clerk before April 17, 1968 resulted in the automatic dismissal of the action by operation of the provisions of CPLR 3404. Since respondent has made no motion to vacate the automatic dismissal, no action is pending. No note of issue can properly be filed restoring it to the Trial Calendar unless and until the CPLR 3404 dismissal is set aside. (4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3404.04; Colombik v. Heinrich, 11 A.D.2d 1026.)