Lee v. City School District

57 A.D.2d 566, 393 N.Y.S.2d 583, 1977 N.Y. App. Div. LEXIS 11535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1977
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., which was automatically dismissed pursuant to CPLR 3404, plaintiffs appeal from an order of the Supreme Court, Westchester County, entered November 9, 1976, which denied their motion to restore the action to the calendar and to compel the defendant-respondent to submit to an examination before trial. Order affirmed, with $50 costs and disbursements. The affirmation in support of plaintiffs’ motion states as an excuse for the failure to file a statement of readiness that the prior attorney was opening his own practice and moving into a new office. In our opinion, the default was basically a "law office failure”. Such excuses "have been weighed in the balance many times and found wanting” (Goldberg v Soifer, 30 AD2d 533, 534). Further, the level of activity between the time the note of issue was filed and the time of the instant motion was insufficient to rebut the presumption that the action had been abandoned (cf. Marco v Sachs, 10 NY2d 542). Cohalan, Acting P. J., Hawkins, Suozzi and Mollen, JJ., concur.