RAMIREZ v. METROPOLITAN SUBURBAN BUS AUTHORITY (1999)

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

Jose V. RAMIREZ, et al., respondents, v. METROPOLITAN SUBURBAN BUS AUTHORITY, et al., appellants.

Decided: February 01, 1999

GUY JAMES MANGANO, P.J., DANIEL W. JOY, WILLIAM D. FRIEDMANN and GLORIA GOLDSTEIN, JJ.

Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellants. Thomas J. Stock, Mineola, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated January 6, 1998, as denied that branch of their motion which was to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, with costs, that branch of the defendants' motion which was to dismiss the complaint is granted, and the complaint is dismissed.

By order dated November 13, 1996, the Supreme Court, Nassau County (O'Brien, J.), marked the plaintiffs' action off the calendar “with leave to renew by notice of motion within 90 days”. Since the plaintiffs failed thereafter to restore the action to the calendar, the Supreme Court should have deemed the action abandoned and dismissed it for neglect to prosecute (see, CPLR 3404).

MEMORANDUM BY THE COURT.

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