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Action Abandoned, Should Not Have Been Restored

In determining an action had been abandoned and should not have been restored, even though there had been a stipulation to restore the action, the Second Department wrote:

Where, as here, an action has been marked “off” the trial calendar, and more than one year has passed without its restoration to the trial calendar, the action shall be deemed abandoned and shall be dismissed (see CPLR 3404). A plaintiff subsequently seeking to restore an action to the trial calendar must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … .

Although the stipulation to restore this action provides some indication that the plaintiff did not intend to abandon it when it was first marked “off,” and there was sporadic activity over the period, in excess of five years, between the automatic dismissal and the motion to restore the action to the trial calendar, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404… . Saint Mary Byzantine Catholic Church v Kalin, 2013 NY Slip Op 06355, 2nd Dept 10-2-13

 

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CIVIL MATTER PROPERLY STAYED UNTIL RELATED CRIMINAL MATTER RESOLVED, DISCRETIONARY CRITERIA EXPLAINED.
NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT).
THE JURY RENDERED A VERDICT IN FAVOR OF PLAINTIFF, FINDING THAT DEFENDANT UNDULY INFLUENCED DECEDENT TO NAME HIM AS THE SOLE BENEFICIARY OF TWO BROKERAGE ACCOUNTS; THE CONCLUSORY AND SPECULATIVE PROOF OF UNDUE INFLUENCE DID NOT SUPPORT THE VERDICT; DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).
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