Majority
p. 280179 MacDougal Equities, Inc., et al., Appellants, v North Realty Co. et al., Respondents. [648 NYS2d 551]
—Order, Supreme Court, New York County (Harold Tompkins, J.), entered March 30, 1995, which denied plaintiffs’ motion to vacate a CPLR 3404 dismissal of the action and to restore it to the calendar, unanimously affirmed, without costs.
The motion to restore was properly denied in the absence of a showing of activity during the year following the striking of the action from the calendar indicative of plaintiffs’ intent not to abandon the action (CPLR 3404; see, Curtin v Grand Union
p. 281
Co., 124 AD2d 918 , 919). Indeed, there does not appear to have been any activity for a period of some three and a half years following the striking of the action from the calendar. Plaintiffs’ excuse that their attorney did not know that the case had been struck until she attempted to file a note of issue does not explain the three-year delay in filing the note of issue after disclosure had been completed. Concur—Rosenberger, J. P., Kupferman, Nardelli, Tom and Mazzarelli, JJ.
Cases cited
- Curtin v. Grand Union Co. 124 AD2d 918 at 919 p. 281