Paiement v. Hertz Corp.

47 A.D.2d 889, 367 N.Y.S.2d 28, 1975 N.Y. App. Div. LEXIS 9299

Opinion

Order, Supreme Court, New York County, entered October 28, 1974, denying plaintiff’s motion to restore the case to the Trial Calendar and for leave to serve a supplemental bill of particulars, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion granted, without costs or disbursements. A primary cause for delay in prosecution of this suit was the substitution of attorneys on three separate occasions by plaintiff. During the interim, the case was marked off the calendar and was subsequently dismissed pursuant to CPLR 3404. Plaintiff’s present counsel made several applications for additional discovery proceedings which motions were opposed by defendants. These motions were litigated at a time when plaintiff’s latest counsel was unaware that the case had already been marked "off calendar.” It is apparent that there was no intentional abandonment of this lawsuit (cf. Marco v Sachs, 10 NY2d 542), and we therefore conclude that it was an improvident exercise of discretion to deny the relief requested. We further find that sufficient was shown to allow plaintiff to file the proposed supplemental bill of particulars. Concur — Murphy, J. P., Lupiano, Capozzoli, Lane and Nunez, JJ.