Dolson v. Avis-Rent-A-Car System, Inc.

Appellate Division of the Supreme Court of New York

Dolson v. Avis-Rent-A-Car System, Inc.

57 A.D.2d 758, 394 N.Y.S.2d 419, 1977 N.Y. App. Div. LEXIS 11909

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

DecidedMay 12, 1977

StatusPublished

Cited by1 cases

This text of 57 A.D.2d 758 (Dolson v. Avis-Rent-A-Car System, Inc.) 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.

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Dolson v. Avis-Rent-A-Car System, Inc., 57 A.D.2d 758, 394 N.Y.S.2d 419, 1977 N.Y. App. Div. LEXIS 11909 (N.Y. Ct. App. 1977).

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Opinion

—Order, Supreme Court, New York County, entered November 15, 1976, restoring this action to the Trial Calendar, unanimously affirmed, without costs and without disbursements, and the plaintiff directed to file a statement of readiness, pursuant to rule 660.4 (subd [d], par [5]) of the Supreme Court, Bronx and New York Counties (22 NYCRR 660.4 [d] [5]), within 10 days after the service upon plaintiff by defendant of a copy of the order [759]*759entered herein with notice of entry. The defendant-appellant is correct in its assertion that plaintiffs counsel has not prosecuted this action with diligence and that the rules of the court require a motion to restore a case to the calendar to be made within one year of its being stricken. Such a rule, based as it is upon "a presumption [of abandonment] rather than a fixed • and immutable policy of dismissal” must give way to such evidence as was presented here that there was no intention to abandon (Marco v Sachs, 10 NY2d 542, 550; Boyle v Krebs & Schulz Motors, 18 AD2d 1010), and, where the neglect is that of the plaintiffs attorney, restoration to the calendar is not an abuse of discretion where, as here, there are serious injuries, an affidavit of merits and no claim of prejudice to the defendant (Boyle v Krebs & Schulz Motors, supra). Concur — Murphy, P. J., Capozzoli, Lane and Lynch, JJ.

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—Order, Supreme Court, New York County, entered November 15, 1976, restoring this action to the Trial Calendar, unanimously affirmed, without costs and without disbursements, and the plaintiff directed to file a statement of readiness, pursuant to rule 660.4 (subd [d], par [5]) of the Supreme Court, Bronx and New York Counties (22 NYCRR 660.4 [d] [5]), within 10 days after the service upon plaintiff by defendant of a copy of the order [759]*759entered herein with notice of entry. The defendant-appellant is correct in its assertion that plaintiffs counsel has not prosecuted this action with diligence and that the rules of the court require a motion to restore a case to the calendar to be made within one year of its being stricken. Such a rule, based as it is upon "a presumption [of abandonment] rather than a fixed • and immutable policy of dismissal” must give way to such evidence as was presented here that there was no intention to abandon (Marco v Sachs, 10 NY2d 542, 550; Boyle v Krebs & Schulz Motors, 18 AD2d 1010), and, where the neglect is that of the plaintiffs attorney, restoration to the calendar is not an abuse of discretion where, as here, there are serious injuries, an affidavit of merits and no claim of prejudice to the defendant (Boyle v Krebs & Schulz Motors, supra). Concur — Murphy, P. J., Capozzoli, Lane and Lynch, JJ.

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Bluebook (online)

57 A.D.2d 758, 394 N.Y.S.2d 419, 1977 N.Y. App. Div. LEXIS 11909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolson-v-avis-rent-a-car-system-inc-nyappdiv-1977.

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