Pisaturo v. McCloud

26 A.D.2d 610, 271 N.Y.S.2d 94, 1966 N.Y. App. Div. LEXIS 3976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1966
• Status: Published

Opinion

Order Unanimously reversed without costs of this appeal to either party, and denied, without costs. Memorandum: The accident which is the subject of this action occurred on December 20, 1962. This action by the infant plaintiff for personal injuries, and his father for derivative damages, was commenced by the service of a summons on September 14, 1963. The complaint was served on October 7 and issue was joined by the service of an answer on October 18, 1063. A note of issue without a statement of readiness was filed On November 18, 1&63. Thereafter an examination of both parties before trial was held on December 30, 1963 and on January 2, 1964. No further steps were taken in the’ prosecution of the action. No statement of readiness has ever been filed. The clerk marked the ease off the calendar on May 18, 1964 and dismissed it under CPLR 3404 and the rules of the court on May 28, 1965. Special Term on January 24, 1966, after recognizing that the delay was inexcusable and stating that the responsibility therefor was not that of the infant plaintiff, opened the default, vacated the dismissal and restored the ease to the calendar. In these circumstances, it was an improvident exercise of discretion to grant the order. Our reversal of Special Term’s determination will not adversely affect the infant who ean commence a new action for his claimed injuries. (Appeal from order of Monroe Special Term granting plaintiff’s motion tó óp'én and vacate the clerk’s dismissal of the action and to restore it to the Trial Calendar.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.