Cappel v. RKO Stanley Warner Theaters, Inc.
| Decision Date | 21 March 1978 |
| Citation | 61 A.D.2d 936,403 N.Y.S.2d 31 |
| Parties | Silas CAPPEL et al., Plaintiffs-Respondents, v. RKO STANLEY WARNER THEATERS, INC., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
T. R. Newman, New York City, for plaintiffs-respondents.
A. J. Balletta, L. E. Freedman, New York City, for defendants-appellants.
Before LUPIANO, J. P., and BIRNS, SILVERMAN, EVANS and SULLIVAN, JJ.
Order, Supreme Court, New York County, entered September 13, 1977, vacating a prior decision of May 5, 1977, and granting, upon reargument, plaintiff's motion to restore the action to the trial calendar, unanimously modified, in the exercise of discretion, to the extent of conditioning the granting of the motion upon plaintiff's counsel paying personally to each defendant $500.00 within 30 days after service upon plaintiffs by defendants of a copy of the order entered herein, with notice of entry thereof, and otherwise affirmed, with $40 costs and disbursements of this appeal to defendants; if said payments are not timely paid, the order is unanimously reversed, on the law and on the facts, and the motion is in all respects denied, with $40 costs and disbursements of this appeal to defendants.
In this personal injury action, at the calendar call of March 15, 1977, plaintiff's counsel submitted an affidavit of actual engagement in Supreme Court and requested an adjournment to April 20. He noted that plaintiffs, who resided in Newfoundland, Canada would then be available. The matter had previously been set down for trial on March 15, and counsel for defendants appeared on that date, ready for trial. At second call plaintiffs' attorney refused to select a jury and the case was "marked off". Plaintiffs moved to restore the matter to the calendar one day before the action would have been dismissed as matter of law for neglect to prosecute (CPLR 3404). Counsel for plaintiff Silas Cappel submitted an affidavit noting that plaintiff's affidavit was not filed earlier because it was not returned from Newfoundland until just prior to its submission. The trial court considered these affidavits inadequate and denied the motion on May 9, 1977. The action was dismissed on March 15, 1977.
On motion to reargue the motion, an adequate affidavit of merit was presented along with sufficient excuse for failure to proceed to trial. The court also found that the defendants had failed to establish prejudice resulting from such...
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