Catalfamo v. Flushing Nat. Bank

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DAMIANI
• Citation: Catalfamo v. Flushing Nat. Bank, 457 N.Y.S.2d 337, 91 A.D.2d 967 (N.Y. App. Div. 1983)
• Decision Date: 03 January 1983
• Parties: John CATALFAMO, Respondent, v. FLUSHING NATIONAL BANK, et al., Appellants; Carat Contracting Co., Inc., Defendant Third-Party Plaintiff-Appellant; Dra-Gam Construction Company, Third-Party Defendant; Haber and Henry, Inc. Third-Party Defendant-Appellant.

Page 337

457 N.Y.S.2d 337

91 A.D.2d 967

John CATALFAMO, Respondent, v. FLUSHING NATIONAL BANK, et al., Appellants Carat Contracting Co., Inc., Defendant Third-Party Plaintiff-Appellant Dra-Gam Construction Company, Third-Party Defendant Haber and Henry, Inc. Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 3, 1983.

Alio & Leahy, Melville (Joseph D. Ahearn and Michael Majewski, New York City, of counsel), for appellant Flushing Nat. Bank.

Wexner, Koenig & Margolies, Rockville Centre (Jerome J. Margolies, Rockville Centre, of counsel), for third-party defendant-appellant (relying on the brief submitted by appellant Flushing Nat. Bank).

Devitt & Spellman, Smithtown (John J.J. Jones, Jr., Patchogue, of counsel), for defendant-third-party plaintiff-appellant.

Pliskin, Rubano & Baum, Flushing (Ralph L. Pliskin, Flushing, of counsel), for appellant Peter Casini.

Zinbarg & Zinbarg, New York City (Eugene D. Zinbarg and Perry S. Friedman, New York City, of counsel), for respondent.

Before DAMIANI, J.P., and LAZER, GULOTTA and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc. defendants and the third-party defendant Haber and Henry, Inc., appeal from an order of the Supreme Court, Queens County dated February 22, 1982, which granted the plaintiff's motion to restore the action to the trial calendar.

Order reversed, on the law, with one bill of $50 costs and disbursements, and motion denied.

The instant case was marked off the trial calendar on January 6, 1981 due to the nonappearance of plaintiff's counsel and was not restored within one year. Consequently, the action should be deemed abandoned pursuant to CPLR 3404 (see Sanick v. Schauder, 15 A.D.2d 801, 226 N.Y.S.2d 701). Moreover, while the foregoing rule "suggests a presumption rather than a fixed and immutable policy of dismissal" (Marco v. Sachs, 10 N.Y.2d 542, 550, 226 N.Y.S.2d 353, 181 N.E.2d 392), plaintiff has failed to rebut that presumption, e.g. by demonstrating the existence of pre-trial activity during the intervening year (see Marco v. Sachs, supra; Morhaim v. Morhaim, 81 A.D.2d 790, 439 N.Y.S.2d 33; Keller v. Finnerty, 78 A.D.2d 635, 432 N.Y.S.2d 112; Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745; cf. General Staple Co. v. Amtronics, Inc., 81 A.D.2d 877, 878, 439 N.Y.S.2d 166).

In the affirmation in support of the plaintiff's motion, the only excuse offered for the 12-month delay in seeking to restore this action to the trial calendar is the fact that the office of plaintiff's counsel was following an incorrect calendar number. This excuse falls within the ambit of "law office failure" which has been uniformly held to be an unacceptable excuse for delay (see Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Richel v. Brookdale Hosp. Med. Center, 87 A.D.2d 815, 448 N.Y.S.2d 771; Keller v. Finnerty, supra; Higgins v. County of Nassau, 76 A.D.2d 881, 432 N.Y.S.2d 673; see, also, Eaton v. Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900, 453 N.Y.S.2d 404, 438 N.E.2d 1119). "Excuses for avoidable delay are insufficient which merely lay the delay at the door of the plaintiff, his lawyer of record,...