Opinion
September 26, 1980
Appeal from the Monroe Supreme Court.
Present — Cardamone, J.P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: This action arises out of a building contract entered into between plaintiff and defendant in 1966. Plaintiff commenced suit on the contract in 1971. A note of issue was filed in 1976 and later the case was put on the general docket for Monroe County in August, 1977. A motion to restore this case to the General Calendar was made and granted in June, 1978. However, since no order was entered restoring the case it was deemed abandoned in August, 1978, one year after it had been placed on the general docket and subject to automatic dismissal pursuant to CPLR 3404. An entry of dismissal was made by the clerk of the court in September, 1978. In May, 1979, plaintiff moved to amend his claim by increasing the ad damnum clause from $10,000 to $50,000 as damages for the breach of contract in the landscaping and construction of his frame dwelling. This motion was granted at Special Term. In August, 1979 plaintiff filed a note of issue and a statement of readiness which defendant moved to vacate. This motion was denied. It is from the granting of the first motion and the denial of the second motion that defendant appeals. Under the rules of this department a case on the general docket is "deemed abandoned and shall be dismissed * * * unless an order of restoration * * * is filed with the calendar clerk within one year of the placement of the case on the general docket" (22 NYCRR 1024.13 [b]). In view of the fact that plaintiff made no motion to vacate the automatic dismissal of the case, no action was pending upon which Special Term could exercise its discretion to increase the ad damnum clause. For the same reason the motion to strike the note of issue and statement of readiness should have been granted as such papers may not be filed unless and until the CPLR 3404 dismissal is vacated (Campbell v. Puntoro, 36 A.D.2d 568, 569).