Miele v. Preu

283 A.D. 1115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1954
• Status: Published

Opinion

In an action based on negligence, defendant Elizabeth Preu appeals from an order granting a motion to vacate an order dismissing this action and restoring it to the day calendar. Order affirmed, without costs. No opinion. Wenzel, Schmidt, Beldoek and Murphy, JJ., concur. Adel, Acting P. J., dissents and votes to reverse the order and to deny the motion, with the following memorandum: The accident upon which this negligence action is based happened on April 6, 1944. The action was commenced on January 25, 1947 — two years and nine months after the accident. The complaint was served on July 30, 1947. Plaintiffs waited until September, 1948, before placing the case on the calendar for trial. The case appeared on the calendar for trial eleven times and was postponed due to the absence of the plaintiffs in Europe. When the cause came on for trial the twelfth time, on February 24, 1954, the plaintiffs were not ready to proceed to trial, but sought another adjournment to obtain written interrogatories from doctors who are alleged to have treated the injured party in Europe. At this time the action was dismissed. Thereafter, a motion was made solely on the affidavit of plaintiffs’ attorney to vacate the dismissal. The motion was granted and the action restored to the calendar for trial. Defaults should not be so lightly treated. To ask this defendant after a lapse of a period of over ten years from the time of the accident to now prepare for trial, I think, is unreasonable.