City of New York v. Sutphin Trust

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered February 11, 1998, which, inter alia, denied that portion of defendants’ motion to dismiss the action pursuant to CPLR 3404, unanimously affirmed, without costs.

Since the clerk’s call in the instant action was not of the type contemplated by CPLR 3404, and since the action was not marked off the court calendar, no presumption of abandonment arose pursuant to CPLR 3404, and, accordingly, the motion to dismiss the action as abandoned within the meaning of that statute was properly denied (see, Smith v Sheen, 216 AD2d 147; Banca Di Roma v Tripodi Eyewear Intl., 219 AD2d 536; see also, Siegel, NY Prac § 376, at 561 [2d ed]). Concur— Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.