Prokop v. City of New York

9 A.D.2d 788, 193 N.Y.S.2d 305, 1959 N.Y. App. Div. LEXIS 5901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1959
• Status: Published

Opinion

In an action to recover damages for personal injuries, and for loss of services, the appeal is from an order granting respondents’ motion to open their default on a pretrial calendar call and to vacate the dismissal of the action, and for other relief. Order reversed, without costs, and motion denied, without costs, and without prejudice to renewal of the motion on proper papers. On this type of motion the movant is required to show both a meritorious cause of action and a reasonable excuse for the neglect in its prosecution and for the delay in the making of the motion. The moving papers submitted fail to show either adequately. It appears that respondents’ attorney of record, by reason of his illness, had assigned this case to certain of his associates for further prosecution. The moving papers, therefore, besides satisfactorily showing the merits of the action, should have set forth an explanation, preferably by such associates themselves, of their failure to proceed with reasonable diligence. Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ., concur. Murphy, J., deceased.