[*1]
Genesee Off. Interiors, Inc. v Furniture Consultants, Inc.
2015 NY Slip Op 51162(U) [48 Misc 3d 1218(A)]
Decided on August 6, 2015
Supreme Court, Monroe County
Rosenbaum, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015
Supreme Court, Monroe County


Genesee Office Interiors, Inc., Plaintiff

against

Furniture Consultants, Inc., Defendant




2008/14477



BARCLAY DAMON, LLP
Paul A. Sanders, Esq.
Attorneys for Plaintiff

Thomas R. Marafioti, Esq.
Attorneys for Defendant


Matthew A. Rosenbaum, J.

Plaintiff, Genesee Office Interiors, Inc., moves for an order marking this case as active, restoring the matter to the Court's calendar and issuing a scheduling order for discovery. Defendant opposes the motion.

This action was commenced on October 17, 2008. Barclay Damon, LLP was recently substituted as counsel for Plaintiff.

Plaintiff filed a motion for a default judgment on January 8, 2009, which was denied on March 4, 2009. Discovery was thereafter commenced but not completed. Plaintiff contends that [*2]this matter was improperly designated as "disposed." Plaintiff states that this designation is improper because a note of issue has not yet been filed. When Plaintiff's counsel contacted the County Clerk to advise them of the error, counsel was informed that the Clerk's office could not change the status of the case because the Court (Fisher, J.) had marked the matter disposed.

On October 14, 2014, Plaintiff's counsel contacted this Court to request restoration. The Court advised that the request must be made by motion. At that point, the parties engaged in communications regarding the claims and documents at issue in an effort to resolve this matter. On June 1, 2015, Defendant indicated it no longer wished to engage in settlement discussions.

Defendant notes that former counsel for Plaintiff did not provide responses to discovery demands and that this matter was dormant for a long period of time. Defendant also questions whether Plaintiff has a meritorious cause of action.

The Fourth Department has stated:



CPLR 3404 provides that "[a] cause in the supreme court . . . marked off' or struck from the calender or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned" (Collins v. Elbadawi, 265 AD2d 850, 851 (1999)) . A case cannot be dismissed as "abandoned" under CPLR 3404, however, unless a note of issue has been filed.



Matter of Giangualano (Birnbaum), 99 AD3d 1221, 1222 (4th Dept. 2012). Here, this matter was marked off despite the fact that a note of issue was not filed. Accordingly, marking the case off the calendar was improper.

Plaintiff's motion is granted in its entirety.

Signed at Rochester, New York this 6th day of August, 2015.

_____________________________

Matthew A. Rosenbaum

Supreme Court Justice