Harris v Stern & Mont., LLP

[*1] Harris v Stern & Mont., LLP 2007 NY Slip Op 51619(U) [16 Misc 3d 136(A)] Decided on August 20, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1278 Q C.

Joshua Harris, Appellant,

against

Stern & Montana, LLP, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered April 17, 2006. The order granted defendant's motion to dismiss plaintiff's action.

Order reversed without costs and defendants' motion to dismiss the action denied.

Plaintiff commenced this action to recover damages for defamation and harassment. We find that the court below improperly granted defendant's motion to dismiss plaintiff's action as abandoned pursuant to CPLR 3404. CPLR 3404 does not apply to Civil Court actions stricken from the calendar, therefore, the Civil Court had no
authority to dismiss this action as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]). The Civil Court rule which governs actions stricken from the calendar (see 22 NYCRR 208.14 [c]) makes no provision for dismissing an action for neglect to prosecute (see id.; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]).

Accordingly, defendant's motion to dismiss the action should have been denied (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, supra).

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: August 20, 2007