Mele v. Griek

11 A.D.2d 783, 204 N.Y.S.2d 933, 1960 N.Y. App. Div. LEXIS 8709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1960
• Status: Published

Opinion

—In an action (No. 2) to recover damages sustained as the result of the defendant’s negligence in the operation of a motor vehicle, the plaintiffs appeal: (1) from an order of the Supreme Court, Suffolk County, dated May 11, 1959, denying their motion to vacate the dismissal of the action and to restore it to the calendar; and (2) from an order of said court dated September 15, 1959, denying their motion for reargument or, in the alternative, for reconsideration of said motion on additional proof. Order of September 15, 1959, insofar as it denies the motion for reconsideration of the original motion on additional proof, reversed, without costs; motion for reconsideration granted; and on reconsideration the dismissal of the action is vacated and the action is restored to the calendar for trial. Appeal from so much of said order as denies reargument, dismissed, without costs. An order denying reargument is not appealable. Appeal from the order of May 11, 1959, dismissed, without costs, as academic. The record shows indisputably that on March 11, 1959, the date the default was suffered in the Supreme Court, Suffolk County, plaintiff’s trial counsel was actually engaged in the Supreme Court, Nassau County; and that his default in Suffolk County was neither willful nor intentional. Under the circumstances, it was an improvident exercise of discretion to dismiss the action and thereafter to deny the application to vacate the dismissal. Beldoek, Acting P. J., Christ, Pette and Brennan, JJ., concur.