Okun v Tanners

Okun v Tanners 2008 NY Slip Op 06746 [11 NY3d 762] September 11, 2008 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 12, 2008

[*1] Stanley Okun, Respondent,
v
Paul Tanners, Appellant.

Decided September 11, 2008

Okun v Tanners, 47 AD3d 475, reversed.

APPEARANCES OF COUNSEL

Rosenberg Feldman Smith, LLP, New York City (Michael H. Smith and Richard B. Feldman of counsel), for appellant.

Shaw, Licitra, Gulotta, Esernio & Henry, P.C., Garden City (Thomas M. Hoey, Jr., of counsel), for respondent.

{**11 NY3d at 763} OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiff's cross motion to restore the action to the calendar denied and defendant's motion to dismiss the action as abandoned dismissed as unnecessary. The certified question should be answered in the [*2]negative.

Under the circumstances, plaintiff's conclusory and unsubstantiated claim of law office failure does not constitute a reasonable excuse for the 20-month delay in pursuing the action. Further, plaintiff's inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails{**11 NY3d at 764} to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.