ENDRES v. MINGLES RESTAURANT LTD (1997)

Supreme Court, Appellate Division, First Department, New York.

Suzanne ENDRES, et al., Plaintiffs-Respondents, v. MINGLES RESTAURANT LTD., et al., Defendants-Appellants.

Decided: September 16, 1997

Before MILONAS, J.P., and ROSENBERGER, WALLACH, NARDELLI and RUBIN, JJ.

Michael Majewski, for plaintiffs-respondents. Peter R. DeFilippi, for defendants-appellants.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered November 29, 1996, which granted plaintiffs' motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar, unanimously affirmed, without costs.

The motion was properly granted upon findings of an excusable lack of awareness on the part of incoming counsel that the case had been marked off the calendar, activity during the period the case was off calendar sufficient to show that there was no intention to abandon it, lack of prejudice to defendant as a result of the delay in restoring the case, and a meritorious cause of action (see, Rutger Fabrics Corp. v. United States Laminating Corp., 111 A.D.2d 40, 488 N.Y.S.2d 714).

MEMORANDUM DECISION.

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