NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
May 19, 2009
CHARLES CHRISTIANO, ET AL., PLAINTIFFS-RESPONDENTS,
SOLOVIEFF REALTY CO., L.L.C., ET AL., DEFENDANTS-APPELLANTS.
NASTASI WHITE, INC., DEFENDANT.
MCCLIER CORPORATION, THIRD-PARTY PLAINTIFF-APPELLANT,
THEODORE WILLIAMS CONSTRUCTION COMPANY, THIRD PARTY DEFENDANT-APPELLANT.
SOLOVIEFF REALTY CO., L.L.C., SECOND THIRD-PARTY PLAINTIFF-APPELLANT,
BANK OF AMERICA CORP., SECOND THIRD PARTY DEFENDANT-APPELLANT.
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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Sweeny, Nardelli, Freedman, JJ.
8881/00, 81997/00 & 83531/03
Plaintiffs failed to meet the criteria for vacating an automatic dismissal pursuant to CPLR 3404 (see Aguilar v Djonvic, 282 AD2d 366 ). 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 between the time the case was struck from the calendar and their court-ordered motion to restore fails to rebut the presumption of abandonment.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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