Freitas v. New York City Transit Authority

297 A.D.2d 270 · Appellate Division of the Supreme Court of the State of New York · Aug 29, 2002

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Antonio Freitas v. New York City Transit Authority, and Lehrer & McGovern, Inc., Respondent Lehrer & McGovern Bovis, Inc., Sued Herein as Lehrer & McGovern, Inc., Third-Party Plaintiff-Respondent v. Rite-Way Interior Removal, Inc., Third-Party Defendant-Respondent

271 By apparently rejecting on the merits the argument that plaintiffs raised for the first time on the motion to reargue, i.e., that the July 1996 note of issue remained in effect, the court, in effect, granted reargument (see, Keh Soo Park v J.G. White Eng’g Corp., 99 AD2d 719, 720), and the order is appealable. Since the case was not marked “off” or unanswered at a calendar clerk’s call, but was marked “disposed,” apparently as a result of a clerk’s error, plaintiffs’ motion to restore the action to the calendar was improperly denied and defendant’s cross motion to dismiss it ás abandoned within the meaning of CPLR 3404 was improperly granted (see, City of New York v Sutphin Trust, 257 AD2d 526). Concur — Tom, J.P., Buckley, Ellerin, Wallach and Gonzalez, JJ.