JEAN LOUIS v. [And A Third Party Action] (1999)

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

Ronald JEAN-LOUIS, et al., Plaintiffs-Respondents, v. 345 RIVERSIDE DRIVE APARTMENT CORP., Defendant-Appellant. [And A Third Party Action]

Decided: March 23, 1999

ROSENBERGER, J.P., NARDELLI, WILLIAMS and WALLACH, JJ.

Scott T. Horn, for Plaintiffs-Respondents. James P. Tenney, for Defendant-Appellant.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about December 3, 1997, which granted plaintiffs' motion to restore the action to the trial calendar, unanimously affirmed, without costs.

The action, which was marked off the calendar after an unanswered calendar call, was properly restored to the calendar upon plaintiffs' attorney's affirmation that he never received notice from the court of the missed calendar call, and court records consistent with the possibility that such notice was misdirected to plaintiffs' former attorney. Significantly, plaintiffs were busily engaged in significant pretrial activity with third-party defendant during the period that the case was off the calendar. The merit of the action is sufficiently demonstrated by the verified complaint, of which the motion court was free to take judicial notice. Nor is there any indication of prejudice to defendant attributable to the off-calendar status of the action.

MEMORANDUM DECISION.

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