Keller v. Finnerty

Appellate Division of the Supreme Court of New York

Keller v. Finnerty

78 A.D.2d 635, 432 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 13108

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 6, 1980

StatusPublished

Cited by1 cases

This text of 78 A.D.2d 635 (Keller v. Finnerty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keller v. Finnerty, 78 A.D.2d 635, 432 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 13108 (N.Y. Ct. App. 1980).

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Opinion

In a negligence action to recover damages for wrongful death and conscious pain and suffering, defendants appeal from an order of the Supreme Court, Orange County, dated December 7, 1979, which granted plaintiffs motion to vacate the dismissal of this action pursuant to CPLR 3404 and to restore the action to the Trial Calendar. Order reversed, on the law, with one bill of $50 costs and disbursements payable jointly to defendants appearing separately [636]*636and filing separate briefs, and plaintiffs motion is denied. It was an improvident exercise of discretion to vacate the automatic dismissal which had been entered pursuant to CPLR 3404. Plaintiff failed to make the requisite showing of facts sufficient to excuse her delay in prosecution. After the case was marked "off’ the calendar on February 27, 1978, due to the nonappearance of plaintiffs counsel, no activity can be shown in this action. Counsel’s unfamiliarity with court rules is law office failure which is not a reasonable excuse for delay (see Mclntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692). The interval of 21 months between the default and the instant motion is sufficient to require denial of the motion since no legitimate excuse for the neglect exists. Damiani, J. P., Lazer, Mangano and Cohalan, JJ., concur.

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In a negligence action to recover damages for wrongful death and conscious pain and suffering, defendants appeal from an order of the Supreme Court, Orange County, dated December 7, 1979, which granted plaintiffs motion to vacate the dismissal of this action pursuant to CPLR 3404 and to restore the action to the Trial Calendar. Order reversed, on the law, with one bill of $50 costs and disbursements payable jointly to defendants appearing separately [636]*636and filing separate briefs, and plaintiffs motion is denied. It was an improvident exercise of discretion to vacate the automatic dismissal which had been entered pursuant to CPLR 3404. Plaintiff failed to make the requisite showing of facts sufficient to excuse her delay in prosecution. After the case was marked "off’ the calendar on February 27, 1978, due to the nonappearance of plaintiffs counsel, no activity can be shown in this action. Counsel’s unfamiliarity with court rules is law office failure which is not a reasonable excuse for delay (see Mclntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692). The interval of 21 months between the default and the instant motion is sufficient to require denial of the motion since no legitimate excuse for the neglect exists. Damiani, J. P., Lazer, Mangano and Cohalan, JJ., concur.

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Bluebook (online)

78 A.D.2d 635, 432 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 13108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-finnerty-nyappdiv-1980.

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