AMSTERDAM LEATHER BAG INC v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION

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

AMSTERDAM LEATHER BAG, INC., Plaintiff-Appellant, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Defendant-Respondent.

Decided: June 17, 1997

Before MILONAS, J.P., and ELLERIN, NARDELLI, WILLIAMS and MAZZARELLI, JJ. Marc H. Miner, for plaintiff-appellant. Allen A. Kolber, for defendant-respondent.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 2, 1996, which denied plaintiff's motion to restore the action to the trial calendar, and granted defendant's cross motion to dismiss the action pursuant to CPLR 3404, unanimously affirmed, without costs.

 The action, which Supreme Court, at a preliminary conference, had directed be transferred to Civil Court pursuant to CPLR 325(d), but which directive was never implemented apparently due to clerical error, was properly dismissed pursuant to CPLR 3404 for plaintiff's failure to show a reasonable excuse for its five-year inactivity after the court's transfer directive, a meritorious cause of action, lack of intent to abandon the action and lack of prejudice to defendant (see, Rodriguez v. Middle Atlantic Auto Leasing, Inc., 122 A.D.2d 720, 722, 511 N.Y.S.2d 595, appeal dismissed 69 N.Y.2d 874, 514 N.Y.S.2d 723, 507 N.E.2d 317).   Service of CPLR 3216 90-day notice was not necessary since plaintiff had served and filed a note of issue prior to the transfer directive (see, Chase v. Scavuzzo, 87 N.Y.2d 228, 233, 638 N.Y.S.2d 587, 661 N.E.2d 1368).   The matter never having been transferred, Supreme Court retained jurisdiction over it.

MEMORANDUM DECISION.