Salles v. Manhattan & Bronx Surface Transit Operating Authority , 638 N.Y.S.2d 451 ( 1996 )

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about July 20, 1995, which, inter alia, denied defendant’s motion to dismiss the action pursuant to CPLR 3404 or 3216, unanimously affirmed, without costs.

Assuming plaintiff was derelict in not filing a "notice to reschedule” with the "appropriate clerk” after this Court’s affirmance of the order granting a new trial, as required by 22 NYCRR 202.45, or should otherwise be deemed to have either abandoned the action within the meaning of CPLR 3404 or failed to prosecute it within the meaning of CPLR 3216, nevertheless the three-year delay should be excused, and the trial go forward, given the general policy favoring dispositions on the merits, a showing of merit, the absence of prejudice, and a not wholly implausible reading of the court rule as being self-executing (cf., 22 NYCRR 208.31). Concur — Murphy, P. J., Ross, Tom and Mazzarelli, JJ.