Cippitelli v. Town of Niskayuna

I respectfully dissent. Initially, I would deem plaintiffs’ pro se affidavits submitted in opposition to defendants’ motions to dismiss both an application to restore the case to the trial calendar and to vacate the CPLR 3404 dismissal (see, Merrill v Robinson, 99 AD2d 578; see also, Malpass v Mavis Tire Supply Corp., 143 AD2d 890). In my opinion, the instant appeal should be treated as one from the denial of the motion to vacate the dismissal. It is settled law that “[t]o prevail on a CPLR 3404 motion, the movant must demonstrate the merits of the case, a reasonable excuse for the delay, the…