Waltman v. De Santis

18 A.D.2d 789, 236 N.Y.S.2d 490, 1963 N.Y. App. Div. LEXIS 4612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1963
• Status: Published

Opinion

Orders, entered on February 6, 1962 (1) vacating a dismissal of the action and restoring the case to the calendar solely for the purpose of transferring the action to the City Court, Bronx County, and (2) transferring the case to the City Court, Bronx County, unanimously reversed on the law and the facts, with $20 costs and disbursements to appellant, and plaintiff’s motion denied, with $10 costs. The suit was commenced in September, 1956, seeking damages for injuries sustained in a motor vehicle intersection accident on December 30, 1955. Plaintiffs filed a note of issue for the September 1958 Term. The case was denied a general preference and was placed on the Deferred Calendar. Apart from the delay of almost two years between the time issue was joined and the note of issue was filed, the record here shows that the case was first dismissed in March, 1959, when plaintiffs failed to appear on a calendar call. Although the case was then restored because of the claim of inadvertence urged on a motion to vacate the dismissal made 14 months after March, 1959, there was, after restoration, a second dismissal on February 8, 1962, when plaintiffs again failed to appear at the calendar call. The excuse of inadvertence and oversight proffered by plaintiffs’ counsel is unsatisfactory. In view of the successive dismissal and the entire background of delay in this ease, we cannot view as adequate an excuse based essentially on inattentiveness to the publication of the calendars in the Law Journal. Concur — Botein, P. J., Breitel, Yalente, Eager and Steuer, JJ.