Balaka v. Stork Restaurant, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Balaka v. Stork Restaurant, Inc., 161 N.Y.S.2d 735, 3 A.D.2d 857 (N.Y. App. Div. 1957)
• Decision Date: 22 April 1957
• Parties: Daisy BALAKA, Respondent, v. STORK RESTAURANT, Inc., doing business as the Stork Club, Appellant.

Page 735

161 N.Y.S.2d 735

3 A.D.2d 857

Daisy BALAKA, Respondent, v. STORK RESTAURANT, Inc., doing business as the Stork Club, Appellant.

Supreme Court, Appellate Division, Second Department.

April 22, 1957.

John G. Coleman, New York City, Philip J. O'Brien, New York City, on brief, for appellant.

Arthur O. Lipinski, Yonkers, for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the appeal is from an order denying a motion to dismiss the complaint for lack of prosecution.

Order reversed, with $10 costs and disbursements, and motion granted, without costs, with leave to respondent, if so advised, to move to vacate the dismissal and to restore the case to the calendar upon papers showing that the cause of action asserted in the complaint is meritorious and giving an adequate excuse for the long delay in bringing the action to trial, particularly for the period since October 10, 1955.

The action was marked off the calendar several times and later restored. On March 30, 1955 an order was entered granting appellant's motion for a prior and separate trial of the issue of release raised by the affirmative defense in the answer and the reply thereto. An appeal from that order was taken by the present respondent and, since that appeal was pending, the case was marked off the calendar by the respondent on April 11, 1955. That order was affirmed on Order 10, 1955. Balaka v. Stork Restaurant, Inc., 286 App.Div. 1018, 146 N.Y.S.2d 676. The notice of motion to dismiss resulting in the order appealed from is dated September 14, 1956.

One year after the case was last marked off the calendar, the cause of action was deemed abandoned and automatically dismissed, and the clerk had the duty to make the entry without any further order. Rules of Civil Practice, rule 302; Westchester County Supreme Court Rules, rule 3, subd. h; Walsh v. Riley's Arrowhead Inn, 2 A.D.2d 714, 153 N.Y.S.2d 651. The rules are automatic and self-executing. Wheelock v. Wheelock, 3 A.D.2d 25, 157 N.Y.S.2d 752. No cross motion to vacate the dismissal and to restore the case to the calendar was made.

Respondent's contention that the calendar clerk's office took the position that the party seeking a prior and separate trial of an issue of fact, such as release, has the obligation of file an additional note of issue and to pay the fee therefor, is not disputed. The question of whether an additional note of issue and an additional fee are required to obtain the separate trial is not properly before this court for determination, in the absence of the calendar clerk and county clerk as parties and on this record and these briefs. (But see Civil Practice Act, § 1557-e,...