Opinion
March 15, 2001.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about June 15, 1999, which, in an action for personal injuries sustained in a trip and fall allegedly caused by a sidewalk defect, denied plaintiffs' motion to restore the action to the active status calendar, and order, same court and Justice, entered on or about January 5, 2000, which, insofar as appealable, denied plaintiffs' motion to renew, unanimously affirmed, without costs.
Brian J. Isaac, for plaintiffs-appellants.
Cheryl Payer, for defendant-respondent.
Before: Sullivan, P.J., Rosenberger, Williams, Mazzarelli, Friedman, JJ.
The action was marked off the active status calendar 27 months before the subject motion, upon plaintiff's failure to answer a clerk's calendar call. In these circumstances, the motion to restore was properly denied for both failure to submit an affidavit of merit and to show an excuse for not having answered the calendar call (see, Almanzar v. Rye Ridge Realty Co., 249 A.D.2d 128, 129). The motion to renew was properly denied for failure to explain why the original motion was not supported with the requisite factual showings (CPLR 2221[e][3]). In any event, the record is devoid of any explanation for the complete lack of activity for the entire 27-month period that the case was off the calendar, and, it also appears, for an additional five-month period before that beginning with the preliminary conference held in August 1996. This action, which was commenced in September 1994 to recover for an injury sustained in July 1992, should be presumed abandoned (CPLR 3404; see, Almanzar v. Rye Ridge Realty Co., supra, at 130).