Becker v. West

Appellate Division of the Supreme Court of New York

Becker v. West

15 A.D.2d 494, 222 N.Y.S.2d 467, 1961 N.Y. App. Div. LEXIS 7432

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 4, 1961

StatusPublished

This text of 15 A.D.2d 494 (Becker v. West) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Becker v. West, 15 A.D.2d 494, 222 N.Y.S.2d 467, 1961 N.Y. App. Div. LEXIS 7432 (N.Y. Ct. App. 1961).

Pincite

Opinion

The accident occurred in January, 1954; the action was commenced in January, 1955; and issue was joined the following month. On October 2, 1957, the action was struck from the calendar because of plaintiffs’ failure to file a statement of readiness. One year later, the action was dismissed pursuant to rule 302 of the Rules of Civil Practice. About two years after the dismissal of the complaint, an attorney who was retained of counsel by the attorney for plaintiffs, moved to open plaintiffs’ default. The excuse offered was “ inadvertence.” Plaintiffs’ attorney did not submit his own affidavit. In our opinion, no proper legal excuse was shown for the omission to file the requisite statement of readiness and for plaintiffs’ delay in moving to open their default. Under the circumstances, the granting of the motion was an improvident exercise of discretion (Green v. Long Is. School of Aeronautics, 12 A D 2d 640; Abbey v. Trynin, 9 A D 2d 913). Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ.,, concur.

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The accident occurred in January, 1954; the action was commenced in January, 1955; and issue was joined the following month. On October 2, 1957, the action was struck from the calendar because of plaintiffs’ failure to file a statement of readiness. One year later, the action was dismissed pursuant to rule 302 of the Rules of Civil Practice. About two years after the dismissal of the complaint, an attorney who was retained of counsel by the attorney for plaintiffs, moved to open plaintiffs’ default. The excuse offered was “ inadvertence.” Plaintiffs’ attorney did not submit his own affidavit. In our opinion, no proper legal excuse was shown for the omission to file the requisite statement of readiness and for plaintiffs’ delay in moving to open their default. Under the circumstances, the granting of the motion was an improvident exercise of discretion (Green v. Long Is. School of Aeronautics, 12 A D 2d 640; Abbey v. Trynin, 9 A D 2d 913). Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ.,, concur.

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Bluebook (online)

15 A.D.2d 494, 222 N.Y.S.2d 467, 1961 N.Y. App. Div. LEXIS 7432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-west-nyappdiv-1961.