Gamerov v. Cunard Steamship Co.

34 A.D.2d 824, 312 N.Y.S.2d 698, 1970 N.Y. App. Div. LEXIS 4700

Opinion

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated September 4, 1969, which granted plaintiff’s motion to vacate the dismissal of the action, to restore the case to the Trial Calendar, and to reduce and transfer the case to the Civil Court of the City of New York, Queens County. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied, with $10 costs. The accident occurred on May 10, 1960, about 10 years ago. A general preference was denied on January 21, 1965, the case was marked off the calendar on May 19, 1965, and was automatically dismissed on May 19, 1966, one year later. Plaintiff’s motion papers were dated April 24, 1969. His injuries were not severe and there was no valid and reasonable excuse for the delay in the prosecution of the action after it had been marked off the calendar. In addition, prejudice to defendant was clearly established. In our opinion, the granting of the motion was an improvident exercise of discretion (CPLR. 3404; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3404.01-3404.03, 3404.05; Delmonte v. Wozniak, 29 A D 2d 735; Green v. Long Is. School of Aeronautics, 12 A D 2d 640; Hamilton v. Dudley, 27 A D 2d 701). Christ, P. J., Rabin, Hopkins, Munder and Brennan, JJ., concur.