Summary
The Appellate Division, Second Department reversed a Supreme Court order dismissing the plaintiff's personal injury action against multiple defendants pursuant to CPLR 3404 for neglect to prosecute. The court held that the defendants failed to establish that the case was formally struck from the trial calendar or that the plaintiff ignored a clerk's calendar call. The decision further clarifies that a prior stay of proceedings pending appeal does not equate to marking a case off the calendar for automatic dismissal purposes.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court erred in granting dismissal of the amended complaint under CPLR 3404 where the case was not marked ‘off’ or struck from the calendar.
Holdings
- The appellate division reversed; the dismissal was improper because the case was not marked off or struck from the calendar and therefore CPLR 3404 did not apply.
Key quotations
“The Supreme Court erred in granting dismissal of the amended complaint insofar as asserted against Versa and the Wakefern defendants pursuant to CPLR 3404.”
Factual background
The plaintiff sued Wakefern Food Corp. and related transportation companies, as well as Versa Cold, Inc., for personal injuries. After years of procedural delays, the defendants sought dismissal of the amended complaint under CPLR 3404, arguing the case was abandoned because it had been struck from the calendar.
Procedural history
The plaintiff filed a personal‑injury action in 2010. The Supreme Court, Queens County, struck the case from the calendar in 2012, later restored it, and after a stay issued on prior appeals, the defendants moved under CPLR 3404 to dismiss the amended complaint. The trial court granted the motions on January 4, 2023. The plaintiff appealed to this Appellate Division.
Remand instructions
Order is reversed; one bill of costs payable by respondents appearing separately and filing separate briefs; the dismissals under CPLR 3404 are denied.