Goodstein Construction Corp. v. City of New York

—Order, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered October 23, 1996, which granted plaintiffs’ motion to vacate the dismissal of the action pursuant to CPLR 3404, and order, same court and Justice, entered March 25, 1997, which, insofar as appealable, denied defendant’s motion to renew, unanimously affirmed, without costs. 167 The motion to vacate dismissal of the action pursuant to CPLR 3404 was properly granted in light of the plaintiffs excusable lack of awareness that the case had been marked off the calendar at a time when an appeal was pending before the Court of Appeals, the activity during the period the case was off calendar, the lack of prejudice to defendant as a result of the delay in restoring the case, and the merit to the cause of action (see, Endres v Mingles Rest., 242 AD2d 455). The denial of the motion for renewal based upon the incapacity of Mr. Gleidman was proper since there was evidence that this witness, as well as a number of other witnesses privy to the same information, had already been deposed. Concur— Nardelli, J. P., Tom, Mazzarelli, Andrias and Saxe, JJ.