Izzi v. Arbucci

90 A.D.2d 841, 456 N.Y.S.2d 85, 1982 N.Y. App. Div. LEXIS 19102

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1982
• Status: Published

Opinion

Appeal by defendants, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vacarro, J.), dated July 20,1981, as upon granting amendment of the title of the action to substitute the administrator of the estate of the deceased plaintiff in his place and stead, granted that part of the plaintiff administrator’s motion which sought to restore the action to the Trial Calendar. Order reversed, insofar as appealed from, without costs or disbursements, and so much of plaintiff’s motion as sought to restore the action to the Trial Calendar is denied. The record reveals no excuse for the extraordinary delay in moving to restore the action to the Trial Calendar. We find no merit to plaintiff’s contention that in limiting their appeal to the restoration directive and not appealing from so much of the order as granted an amendment of the title of the action defendants acquiesced in the 10 years of delay. Under all of the circumstances, the order, insofar as it restored the case to the Trial Calendar, constituted an improvident exercise of discretion (see Barasch v Micucci, 49 NY2d 594; O’Brien v Groome, 87 AD2d 624). Titone, J. P., O’Connor, Thompson and Bracken, JJ., concur.