General
Melody Palmer, Respondent, v. George W. Long, Inc., Doing Business as Sea Breeze Park, Appellant
219 A.D.2d 854632 N.Y.S.2d 1008·New York Supreme Court, Appellate Division·1995·NY
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Opinion
Melody Palmer, Respondent, v George W. Long, Inc., Doing Business as Sea Breeze Park, Appellant.
[632 NYS2d 1008]
[MAJORITY]
Order unanimously affirmed without costs. Memorandum: There is no merit to the contention of defendant that Supreme Court erred in placing this case on the pre-note calendar for Supreme Court, Monroe County. CPLR 3404 does not apply to this case because by its very terms it applies only where a case is "marked 'off or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter”. There is no evidence in the record to support defendant’s assertion that the case was stricken from Justice Cornelius’ pre-note calendar. In any event, plaintiff established that she never intended to abandon the action (see, Beaugene v Duo-Fast Corp., 206 AD2d 971). (Appeal from Order of Supreme Court, Monroe County, Cornelius, J. — Restore to Calendar.) Present — Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.