OKUN v. TANNERS (2008)

Court of Appeals of New York.

Stanley OKUN, Respondent, v. Paul TANNERS, Appellant.

Decided: September 11, 2008

Rosenberg Feldman Smith, LLP, New York City (Michael H. Smith and Richard B. Feldman of counsel), for appellant. Shaw, Licitra, Gulotta, Esernio & Henry, PC., Garden City (Thomas M. Hoey, Jr., of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, plaintiff's cross motion to restore the action to the calendar denied and defendant's motion to dismiss the action as abandoned dismissed as unnecessary. The certified question should be answered in the negative.

Under the circumstances, plaintiff's conclusory and unsubstantiated claim of law office failure does not constitute a reasonable excuse for the 20-month delay in pursuing the action. Further, plaintiff's inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

Memorandum.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

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