Auerbach v. Kaufman

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on July 18, 1990, which, inter alia, granted defendants’ CPLR 3404 motion to dismiss the action for failure to prosecute, unanimously reversed, on the law, the facts and in the exercise of discretion, and the action reinstated, with costs. This accounting action was improperly dismissed pursuant to CPLR 3404. No note of issue was ever filed in the case and there is no evidence in either the Referee’s scheduling papers or the Supreme Court Clerk’s minutes indicating that the action had been marked or struck from the calendar. 230 Further there is no showing that the action went unanswered on a clerk’s calendar call. As such, the Court improperly dismissed this action pursuant to CPLR 3404. (See, Trustees of Town of Southampton v Heilner, 143 AD2d 134; Thompson v Thompson, 103 AD2d 772.) The plaintiff has demonstrated merit since the agreement, on its face, calls for an accounting. We further note that this action was not dismissable for general delay in filing a note of issue, since defendants never served the 90-day notice required under CPLR 3216 (b) (3). Concur—Murphy, P. J., Carro, Ellerin, Wallach and Asch, JJ.