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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 24, 2015

Case Cannot be Dismissed as Abandoned Unless Note of Issue Has Been Filed

On August 6, 2015, Justice Rosenbaum of the Monroe County Commercial Division issued a decision in Genesee Office Interiors, Inc. v. Furniture Consultants, Inc., 2015 NY Slip Op. 51162(U), vacating a dismissal for abandonment, explaining that “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. A case cannot be dismissed as “abandoned” under CPLR 3404, however, unless a note of issue has been filed.” (Internal quotations and citations omitted) (emphasis added). Because a note of issue had not been filed, the matter was marked off in error and the court ordered it restored.

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