D'Aprile v. Schoenfield

25 A.D.2d 722

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1966
• Status: Published

Opinion

Order entered on October 13, 1964, granting plaintiff’s motion to vacate order of November 13, 1961 dismissing case for nonappearance of plaintiff at calendar call, and to restore case to nonpreferred calendar reversed on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to the appellants, and the motion denied. This is a classic ease of failure to prosecute. The action, brought to recover damages for personal injuries alleged to have been suffered by the plaintiff on January 15, 1955, was instituted January 13, 1958, two days before the Statute of Limitations would have run against the claim. Nearly three years later the ease was noticed for trial for the January 1961 Term. Plaintiff failed to appear at the call of the calendar in November, 1961, and the case was therefore dismissed. Nearly three years thereafter, plaintiff moved to vacate the order of dismissal and to restore the ease to the non-preferred calendar; and this appeal is from the order granting that motion. It appears that the plaintiff has changed attorneys. Among the reasons given for plaintiffs inordinate delay *is that the file was misplaced. That is not a sufficient excuse (Weeks v. Jankowitz, 23 A D 2d 549; Houle v. Wilde, 22 A D 2d 727; Kusner v. Municipal Housing Auth. of Yonkers, 21 A D 2d 686); and no other credible excuse has been proffered. Moreover, there is no evidentiary .showing of merit, and plaintiff’s apparent lack of interest in his lawsuit suggests lack of merit. (See Sortino v. Fisher, 20 A D 2d 25.)

Concur — Breitel, J. P., Rabin, MeNaily, Steuer and Witmer, JJ.