Hummeil v. Belanich

63 A.D.2d 802, 405 N.Y.S.2d 149, 1978 N.Y. App. Div. LEXIS 11752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered August 17, 1977 in Albany County, which granted plaintiffs’ motion to restore the within action to the Trial Calendar. Although plaintiffs’ motion should have been styled as one to vacate the automatic dismissal of their complaint rather than one to restore their action to the Trial Calendar, the distinction is of no importance for we will so treat it and apply the standard for determining such an application. We accept the reasonableness of plaintiffs’ excuse for failing to have this matter timely removed from the Deferred Calendar, but Special Term lacked a proper basis for the exercise of its discretion to grant the requested relief because plaintiffs made no attempt whatever to demonstrate that they possessed a meritorious cause of action. Accordingly, the order appealed from should be reversed with leave to plaintiffs to renew their motion should they be so advised (see Hickey v Schumacher, 54 AD2d 790; Adriance v County of Rensselaer, 52 AD2d 1002; Quick-Way Excavators v Overmyer Co., 44 AD2d 740; Sgambelluri v Town of Colonie, 34 AD2d 586). Order reversed, on the law and the facts, with costs; motion denied without prejudice to a renewal of plaintiffs’ motion if they be so advised. Mahoney, P. J., Greenblott, Kane, Main and Mikoll, JJ., concur.