City of New York v. Sutphin Trust

Full title: CITY OF NEW YORK, Respondent, v. SUTPHIN TRUST et al., Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 26, 1999

257 A.D.2d 526 (N.Y. App. Div. 1999)

682 N.Y.S.2d 591

Opinion

January 26, 1999.

Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).

Since the clerk's call in the instant action was not of the type contemplated by CPLR 3404, and since the action was not marked off the court calendar, no presumption of abandonment arose pursuant to CPLR 3404, and, accordingly, the motion to dismiss the action as abandoned within the meaning of that statute was properly denied ( see, Smith v. Sheen, 216 A.D.2d 147; Banca Di Roma v. Tripodi Eyewear Intl., 219 A.D.2d 536; see also, Siegel, N.Y. Prac § 376, at 561 [2d ed]).

Concur — Rosenberger, J.P., Ellerin, Tom and Mazzarelli, JJ.