Opinion
May 28, 1976
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Moule, Simons and Dillon, JJ.
Appeal unanimously dismissed, without costs, in accordance with the following memorandum: Plaintiffs appeal from an order denying their motion to vacate four preclusion orders and defendants move for dismissal of the appeal upon the ground that the action has been dismissed pursuant to CPLR 3404 and the rules of this court (22 NYCRR 1024.13). The action was noticed for trial in May, 1973 and placed upon the general docket on June 23, 1974. Inasmuch as a year has elapsed without entry of an order restoring the case to the Trial Calendar, plaintiffs' application is premature until the default is vacated. Defendants' motion to dismiss the appeal is, therefore, granted (see Chavoustie v Village of Newark, 52 A.D.2d 1064).