SCHIAVONE v. PISANIELLO (2000)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered November 2, 1998, which granted defendants' motion to dismiss the action as abandoned, and denied plaintiff's cross motion to restore the action to the trial calendar, unanimously affirmed, without costs.

Plaintiff fails to explain why the action, which seeks to recover for a 1987 trip and fall over an allegedly defective walkway in front of defendants' building, should have remained off the calendar for four years, beginning in October 1994 when the individual defendant died.   Accepting that plaintiff was prevented from effecting a substitution by a will contest that was not resolved until June 1996, it remains that she did not move for a substitution until October 1998, and then only in response to defendants' motions to dismiss.   Plaintiff's attorney attributes this latter delay to an associate who left the attorney's firm in December 1997 and who “[r]egretfully, ․ did not commence or complete the matter assigned to him”.   We are not persuaded by this conclusory claim of law office failure.   The showing on the merits is also inadequate.   Plaintiff's deposition testimony was vague as to the condition that actually caused her to fall, and insufficient to support an inference of notice of the condition, whatever it was (see, Todd Co. v. Birnbaum, 182 A.D.2d 505, 505-506, 582 N.Y.S.2d 414).

MEMORANDUM DECISION.