McShan v. Dilbert's Quality Supermarkets, Inc.

33 A.D.2d 792, 307 N.Y.S.2d 179, 1969 N.Y. App. Div. LEXIS 2515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1969
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, which action was automatically dismissed pursuant to CPLR 3404, defendants appeal from an order of the Supreme Court, Kings County, dated March 3, 1969, which granted plaintiff’s motion to open his default, vacate the dismissal and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied. In support of plaintiff’s motion to be relieved of his default in failing to appear at a pretrial calendar call, which default eventually resulted in an automatic dismissal under CPLR 3404, an attorney associated with plaintiff’s attorney alleged that the default resulted from the fact that the action was being followed in their firm’s “ suit record ” book under a former calendar number, since a subsequently assigned new calendar number had never been entered in this book. In our view such an excuse is insufficient (cf. Chicollo v. New York City Housing Auth,., 31 A D 2d 546; Filippi v. Grand Union Co., 30 A D 2d 532; Goldberg v. Soifer, 30 A D 2d 533; Tepperman v. Peri, 29 A D 2d 893; Renne v. Roven, 29 A D 2d 866). Nor is this a case where the presumption of abandonment under CPLR 3404 is rebutted by a conclusive showing that plaintiff never intended to abandon the action (see Marco v. Sachs, 10 N Y 2d 542; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Tactuk v. Freiberg, 24 A D 2d 503; Blau v. Levine, 28 A D 2d 1137). Beldock, P. J., Christ, Brennan, Rabin and Kleinfeld, JJ., concur.