SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 2, 1969
IN THE MATTER OF THE ARBITRATION BETWEEN FERNA LEVINE ET AL., APPELLANTS, AND MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, RESPONDENT
Order of the Supreme Court, Westchester County, dated October 25, 1968, affirmed, without costs.
Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.
In our opinion, the record indicates a meritorious defense to the demand for arbitration, no intention on the part of respondent to abandon the preliminary trial, and otherwise diligent prosecution thereof. There being no demonstrated prejudice to appellants, we conclude that Special Term did not abuse its discretion, in this proceeding by respondent to stay arbitration, in granting respondent's motion to restore the proceeding to the calendar after it had been marked off the calendar and automatically dismissed, because not restored within a year, pursuant to CPLR 3404 (Marco v. Sachs, 10 N.Y.2d 542; Ackerman v. Perchikoff, 30 A.D.2d 672; Blau v. Levine, 28 A.D.2d 1137).
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