Opinion
March 23, 1999
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
The action, which was marked off the calendar after an unanswered calendar call, was properly restored to the calendar upon plaintiffs' attorney's affirmation that he never received notice from the court of the missed calendar call, and court records consistent with the possibility that such notice was misdirected to plaintiffs' former attorney. Significantly, plaintiffs were busily engaged in significant pretrial activity with third-party defendant during the period that the case was off the calendar. The merit of the action is sufficiently demonstrated by the verified complaint, of which the motion court was free to take judicial notice. Nor is there any indication of prejudice to defendant attributable to the off-calendar status of the action.
Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.