Rothenberg v. Parkway Exterminating Co.

90 A.D.2d 497, 454 N.Y.S.2d 747, 1982 N.Y. App. Div. LEXIS 18524

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 1982
• Status: Published

Opinion

Appeal by defendant Parkway Exterminating Co. from an order of the Supreme Court, Westchester County (Gagliardi, J.), entered March 16,1982, which granted the plaintiff’s motion to have her case restored to the Trial Calendar. Order reversed, on the law, with $50 costs and disbursements, and plaintiff’s motion to restore the case to the Trial Calendar is denied. Special Term injudiciously granted the plaintiff’s motion to restore her case to the Trial Calendar. The papers supporting her application were deficient in that she failed to provide an affidavit concerning the merits of her cause of action by one with knowledge of the facts (see Barasch v Micucci, 49 NY2d 594; 22 NYCRR 675.5 [b]). Moreover the excuse offered for her failure to appear, namely, that she was provided erroneous information by her calendar service, constituted law office failure and as such is unacceptable (Barasch v Micucci, supra; Goetzmann v Continental Cas. Co., 70 AD2d 1046; Filippi v Grand Union Co., 30 AD2d 532). Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.