Kossefis v. Law Office of Robert P. Tusa

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated January 20, 2006, which denied her motion to vacate the dismissal of the action, and to restore the action to the trial calendar. Ordered that the order is affirmed, with costs. The record does not demonstrate whether the court dismissed this action on April 15, 2004, pursuant to 22 NYCRR 202.27 (b) based upon the plaintiffs counsel’s failure to appear at a trial conference, or whether the court marked this action off the trial calendar on April 15, 2004, and it was later automatically dismissed pursuant to CPLR 3404. Regardless, the plaintiff 863 failed to present grounds for restoration under either scenario (see Rezene v Williams, 22 AD3d 656, 657 [2005]; Sharpe v Osorio, 21 AD3d 467, 468 [2005]; Costigan v Bleifeld, 21 AD3d 871, 871-872 [2005]; Uddin v Mirza, 10 AD3d 722 [2004]; Beale v Yepes, 309 AD2d 886 [2003]; Sarot v Yusufov, 301 AD2d 512, 513 [2003]). Accordingly, the court providently exercised its discretion in denying the plaintiffs motion to vacate the dismissal and to restore this action to the trial calendar. Miller, J.E, Spolzino, Krausman, Fisher and Dillon, JJ., concur.