Wachter v. City of New York

Full title: RUBY WACHTER, Plaintiff-appellant, v. THE CITY OF NEW YORK…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 17, 2002

300 A.D.2d 129 (N.Y. App. Div. 2002)

750 N.Y.S.2d 761

Opinion

2566

December 17, 2002.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about May 31, 2001, which denied plaintiff's motion to restore the action, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings.

Joseph G. Dell, for Plaintiff-appellant.

Pamela Seider, for Defendant-respondent.

Before: TOM, J.P., BUCKLEY, FRIEDMAN, MARLOW, GONZALEZ, JJ.

As conceded by defendant City, plaintiff's pre-note of issue case should not have been struck from the calendar pursuant to CPLR 3404 (see Johnson v. Sam Minskoff Sons, 287 A.D.2d 233, 235), and, in view of that circumstance and the absence of any other ground for marking the case off the calendar, plaintiff's motion to restore should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.