Garrison v. State

40 Misc. 2d 965, 244 N.Y.S.2d 598, 1963 N.Y. Misc. LEXIS 2030

Opinion

Alexander Del Giorno, J.

This is a motion for an order vacating an order of dismissal and restoring the claim to the Trial Calendar.

The order dismissing the claim was dated September 27, 1961. On October 9, 1961, a copy of the order dismissing the claim, with notice of entry, was mailed to claimant’s attorney at the address designated by him for that purpose in the claim. On October 11,1961, a copy of the order with notice of entry was mailed to claimant at the address indicated by her in the claim.

The claim is one to recover for personal injuries sustained as a result of the alleged negligence of the State. The accident occurred on October 11, 1956 and the claim herein was filed on May 31, 1957. Notice of the Calendar Call in September, 1961 was received by the attorney for the claimant and he alleges that his failure to appear on the call was due solely to the inadvertence of his office.

Under the circumstances, the plea of inadvertence is insufficient and does not constitute a reasonable excuse for the failure to prosecute the claim. (Stern v. State of New York, 11 A D 2d 585; Turcich v. State of New York, 11 A D 2d 844.)

Further, it is to he noted that this motion is made more than one year and a half after the order of dismissal and notice thereof to claimant and his attorney. Thus, the application is not made within a reasonable time. (Gaskell v. Salmar Development Corp., 9 A D 2d 765; Cassidy v. Times-Transcript, 283 App. Div. 1069.) The motion is denied.