[*1]
Walker v Saftler, Saftler & Kirschner
2006 NY Slip Op 50692(U) [11 Misc 3d 141(A)]
Decided on April 21, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 21, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS,J.P., SCHOENFELD, J.
570245/05

Irene Ramdeo Walker, as Executor of the Estate of Herbert Walker, Deceased, individually and as shareholder or equitable shareholder in Silver Eagle Aircraft Corporation, Plaintiff-Appellant, - -

against

Saftler, Saftler & Kirschner, -and- Lawrence B. Saftler, -and- Charles B. Kirschner, Defendants-Respondents.


Plaintiff appeals from an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), entered October 8, 2004, which granted defendants' renewed motion to dismiss the complaint for failure to prosecute.


PER CURIAM:

Order (Sharon A.M. Aarons, J.), entered October 8, 2004, reversed, with $10 costs, motion denied, and complaint reinstated.

Defendant's renewed motion to dismiss the complaint for failure to prosecute should have been denied. The record establishes that the action was restored to the calendar by a prior unappealed order of January 4, 2000, and that plaintiff fully complied with the ministerial conditions for restoration set out in the prior order. Thus, defendant failed to demonstrate the applicability of 22 NYCRR 208.14[c] or [d]). To the extent that the clear terms of the January 4, 2000 restoration order may conflict with language contained in the court clerk's November 20, 2001 "Extract of Dismissal," the restoration order controls. Courts do not possess the power to dismiss an action for general delay (see Chase v Scavuzzo, 87 NY2d 228, 233 [1995]).

This constitutes the decision and order of the court. [*2]
I concurI concur
Decision Date: April 21, 2006