First Jeffersonian Associates v. Elite Associates, Inc.

In an action to recover damages for breach of a performance bond, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated October 21, 1999, which granted the motion of the defendant Aetna Fire Underwriters Insurance Co. to dismiss the action as abandoned pursuant to CPLR 3404, and denied its cross motion, inter alia, to restore the action to the trial calendar. Ordered that the order is affirmed, with costs. Contrary to the plaintiff’s contention, the Supreme Court [742] properly granted the motion to dismiss the action pursuant to CPLR 3404. The plaintiff failed to appear for calendar call on November 23, 1994, and the case was marked off the calendar that day. The action was automatically dismissed pursuant to CPLR 3404 one year later. The entry of a certificate of dismissal was unnecessary, as it is merely a ministerial act (see, Rosser v Scacalossi, 140 AD2d 318; Curtin v Grand Union Co., 124 AD2d 918). The plaintiff failed to establish that restoration of the action after such a lengthy delay would not be unduly prejudicial (see, Rosser v Scacalossi, supra; Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720). The plaintiff’s remaining contention is without merit. O’Brien, J. P., McGinity, Luciano and Schmidt, JJ., concur.