Nicotera v. Aliasso

22 A.D.2d 758, 253 N.Y.S.2d 722, 1964 N.Y. App. Div. LEXIS 2906

Opinion

Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs. Memorandum: This action to recover damages for personal injuries, under the Civil Rights Law, was commenced in Oneida County Court on July 21, 1958. Issue was joined on September 24, 1958 and a note of issue was served on May 28, 1959 for the September Term of court. Thereafter and until January 1961 the action was marked “over” for seven times and was then stricken off the calendar. Nothing further was done until substituted counsel for plaintiff by notice of motion dated January 24, 1963 moved to restore the cause to the Trial Calendar. The excuses proffered for the delay, namely engagement of attorneys in other matters, are not sufficient to justify a delay of nearly five years. The order restoring the case to the calendar was an improvident exercise of discretion which cannot be approved by the facts in this record. (Malekian v. McLean Trucking Co., 10 A D 2d 825; Di Giulio v. Di Giulio, 8 AD 773; Sigmund v. House of Cutlery, 7 A D 2d 565.) (Appeal from order of Oneida County Court granting plaintiff’s motion to restore the action to the Trial Calendar.) Present—Williams, P. J., Bastow, Goldman, Henry and Del Veeehio, JJ.