Morales v. City of New York, 673 N.Y.S.2d 588

Morales v. City of New York

673 N.Y.S.2d 588

N.Y. App. Div.

1998

Check Treatment

—In an action to recover damages for personal injuries, etc., the third-party defendant Brooklyn Union Gas appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 18, 1997, which, inter alia, granted the plaintiffs’ motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs payable by the appellant to the respondents.

A motion to vacate the dismissal of an action pursuant to CPLR 3404 and to restore the matter to the calendar is addressed to the sound discretion of the trial court (see, Carter v City of New York, 231 AD2d 485; Smith v City of New York, 203 AD2d 553). Under the circumstances of this case, where it is not clear that the case was marked off the calendar because of any fault of the plaintiffs, it cannot be said that the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion (see, e.g., Holbrook v United Hosp. Med. Ctr., 239 AD2d 317). Bracken, J. P., Copertino, Santucci and Mc-Ginity, JJ., concur.