PAINTING v. ARGO REAL ESTATE LLC (2025)

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

Ben Jacobson PAINTING, Plaintiff–Appellant, v. ARGO REAL ESTATE LLC, et al., Defendants–Respondents.

3988

Decided: March 27, 2025

Moulton, J.P., Gesmer, Scarpulla, Rosado, Michael, JJ.

Clifford Law Firm, P.C., New York (Nancy Clifford of counsel), for appellant. O'Sullivan & Zacchea, PLLC, Astoria (Kevin M. O'Sullivan of counsel), for respondents.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about April 17, 2024, which, to the extent appealable and as limited by the briefs, denied plaintiff's motion pursuant to CPLR 3404 to restore the matter to the inquest calendar, unanimously reversed, on the law, without costs, the motion granted, and the matter restored to the calendar.

The court should have granted plaintiff's motion to restore, because the motion was made within one year from the case being marked off the calendar, and plaintiff was not required to rebut any presumption of abandonment (see Johnson v. Rivera, 10 A.D.3d 288, 288–289, 781 N.Y.S.2d 22 [1st Dept. 2004]).

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