Federal Factors Corp. v. Perpall

263 A.D. 863, 32 N.Y.S.2d 562

Opinion

Per Curiam.

We agree with the Appellate Term that in the absence of adequate explanation of the plaintiff’s delay in restoring the cause to the calendar, the motion should have been denied. The complaint, however, should not have been dismissed, no motion for such relief having been made by the defendant.

The determination of the Appellate Term should be modified by striking out the provision dismissing the complaint and by providing that the motion to restore the case to the day calendar is denied without prejudice to a renewal thereof upon affidavits explaining the plaintiff’s delay, and as so modified affirmed, without costs.

Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.

Determination unanimously modified by striking out the provision dismissing the complaint and by providing that the motion to restore the ease to the day calendar is denied without prejudice to a renewal thereof upon affidavits explaining the plaintiff’s delay, and as so modified affirmed, without costs.