| Botsas v Grossman |
| 2008 NY Slip Op 04304 [51 AD3d 617] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Arthur T. Botsas, Appellant, v Abraham C. Grossman etal., Respondents. |
—[*1] Steven K. Mantione, Malverne, N.Y., for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Queens County (Dorsa, J.), dated November 22, 2006, which,among other things, granted the defendants' motion to dismiss the action as abandoned pursuantto CPLR 3404, and (2) a judgment of the same court entered December 7, 2006, which, upon theorder, is in favor of the defendants and against him, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
This action was removed from the trial calendar, at the plaintiff's request, pendingcompletion of discovery. By order dated August 14, 2002, the Supreme Court denied theplaintiff's motion to restore the action to the trial calendar, without prejudice to renew, upon thecompletion [*2]of discovery. That order was affirmed by thisCourt (see Botsas v Grossman, 7AD3d 654 [2004]). Since that date, the plaintiff has not conducted additional discovery nortaken any steps to prosecute the action. Thus, the defendants moved to dismiss the action asabandoned pursuant to CPLR 3404.
In opposition to the defendants' motion, the plaintiff failed to demonstrate a meritoriouscause of action, a reasonable excuse for the delay, and a lack of intent to abandon the action, andthat the defendants would not be prejudiced by the delay. Accordingly, the court properly grantedthe defendants' motion (see CPLR 3404; M. Parisi & Son Constr. Co., Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d819 [2007]; Moldovan v Miller, 280 AD2d 362 [2001]; cf. LeBlanc v Budman, 18 AD3d718 [2005]).
The plaintiff's remaining contentions are without merit. Miller, J.P., Dillon, McCarthy andChambers, JJ., concur.