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

Gregory MILLS, As Surviving Executor of the Estate of Linda Mills Pisani, Deceased, Plaintiff-Appellant, v. Santo C. PISANI, Defendant-Respondent.

Decided: November 10, 2005

PRESENT:  GREEN, J.P., GORSKI, SMITH, LAWTON, AND HAYES, JJ. D'Arrigo Law Offices, Liverpool (Mario D'Arrigo of Counsel), for Plaintiff-Appellant. Baldwin & Sutphen, LLP, Syracuse (Robert F. Baldwin, Jr., of Counsel), for Defendant-Respondent.

Linda Mills Pisani (decedent) commenced this action for divorce in 1992.   In June 1994, Supreme Court (Murphy, J.) granted decedent a judgment of divorce and stayed entry of the judgment pending resolution of the equitable distribution issues.   In July 1995, the court issued an order that, inter alia, lifted the stay, struck the case from the calendar, and directed that a new note of issue be filed within 120 days of the order.   The judgment of divorce and the order lifting the stay and striking the case from the calendar were filed on July 20, 1995.   No further action was taken on the equitable distribution issues.   Decedent died on July 25, 2000, and defendant thereafter attempted to make a claim against decedent's estate in Surrogate's Court based on equitable distribution.   Plaintiff thus moved in March 2004 for an order substituting him as the plaintiff in the divorce action for the sole purpose of making the motion, determining that the action has been deemed abandoned pursuant to CPLR 3404, and dismissing the action with prejudice based on that abandonment.   The motion was unopposed, and Supreme Court (DeJoseph, J.) granted the motion in its entirety.   The court then granted defendant's subsequent motion for leave to reargue plaintiff's motion and, upon reargument, vacated that part of the prior order and judgment that dismissed the action with prejudice, and denied that part of plaintiff's motion seeking dismissal of the action with prejudice.   Plaintiff appeals.

 “CPLR 3404 dismissals are accomplished automatically upon the passage of one year after being stricken, by operation of law” (Threatt v. Seton Health Sys., 277 A.D.2d 796, 796, 715 N.Y.S.2d 791;  see Meade v. L.A. Lama Agency, 260 A.D.2d 979, 980-981, 689 N.Y.S.2d 302;  Lee v. Chion, 213 A.D.2d 602, 603, 623 N.Y.S.2d 927;  Homowack Realty Corp. v. Gitlin, 25 A.D.2d 703, 268 N.Y.S.2d 178).   Thus, the court properly refused to vacate those parts of the prior order and judgment granting those parts of the motion of plaintiff seeking to substitute him as the plaintiff in the action for the sole purpose of making the motion and seeking a determination that the action has been deemed abandoned pursuant to CPLR 3404.   To the extent that plaintiff sought dismissal of the action pursuant to CPLR 3404, the court properly refused to grant that relief as unnecessary (see Neidereger v. Hidden Park Apts., 306 A.D.2d 392, 760 N.Y.S.2d 892;  Sarot v. Yusufov, 301 A.D.2d 512, 513, 753 N.Y.S.2d 121;  Honeoye Falls-Lima Cent. School Dist. v. Leo J. Roth Corp., 53 A.D.2d 1044, 386 N.Y.S.2d 165;  Levine v. Levy, 29 A.D.2d 827, 287 N.Y.S.2d 540).   We reject defendant's contention that the matter should be remitted to Supreme Court to determine whether the action should be restored to the calendar.  “While the court retains discretion to [vacate the dismissal and] restore the case to the calendar ․, [defendant] never sought such relief” (Meade, 260 A.D.2d at 981, 689 N.Y.S.2d 302).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.