| Christiano v Solovieff Realty Co., L.L.C. |
| 2009 NY Slip Op 03942 [62 AD3d 535] |
| May 19, 2009 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Charles Christiano et al., Respondents, v Solovieff Realty Co., L.L.C., et al., Appellants, et al. Defendant. McClier Corporation, Third-Party Plaintiff-Appellant, v Theodore Williams Construction Company, Third-Party Defendant-Appellant. Solovieff Realty Co., L.L.C., Second Third-Party Plaintiff-Appellant, v Bank of America Corp., Second Third-Party Defendant-Appellant. |
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Jasper & Jasper, P.C., New York (Michael H. Zhu of counsel), for respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 4, 2008, which granted plaintiffs' motion to restore the action to the trial calendar, unanimously reversed, on the law, without costs, the motion denied and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic, 282 AD2d 366 [2001]). Their affidavit of merit was conclusory, they offered no reasonable explanation for their failure to proceed with discovery for nearly two years, they failed even to address the issue of prejudice to defendants, and their lack of activity [*2]between the time the case was struck from the calendar and their court-ordered motion to restore fails to rebut the presumption of abandonment. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Freedman, JJ.