Colombik v. Heinrich

• Decision Date: 03 October 1960
• Citation: Colombik v. Heinrich, 205 N.Y.S.2d 921, 11 A.D.2d 1026 (N.Y. App. Div. 1960)
• Parties: Arthur I. COLOMBIK, Respondent, v. Max HEINRICH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 921

205 N.Y.S.2d 921

11 A.D.2d 1026

Arthur I. COLOMBIK, Respondent, v. Max HEINRICH, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 3, 1960.

James M. Mannix, Jr., White Plains, for appellant; Howard H. Schrecke, White Plains, of counsel.

Morris U. Greenberg, New York City, for respondent; Norman Bard, Brooklyn, of counsel.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and CHRIST, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Westchester County, dated March 17, 1959, which granted his motion to dismiss the complaint for lack of prosecution, unless the cause was restored to the calendar and a note of issue together with a statement of readiness was filed for a specified term of the court.

Order reversed, without costs, and motion denied, without costs, and without prejudice to a further motion at Special Term, as indicated herein.

The case was marked off the calendar on October 2, 1957. Not having been restored within one year thereafter, it was automatically dismissed by operation of rule 302 of the Rules of Civil Practice (Balaka v. Stork Restaurant, Inc., 3 A.D.2d 857, 161 N.Y.S.2d 735; Roe v. Kurkhill, 6 A.D.2d 716, 174 N.Y.S.2d 573). Consequently, in January, 1959, when the motion was made to dismiss the plaintiff's complaint for failure to prosecute, there was no action pending, and the action could not be restored to the calendar until the dismissal of the complaint had been vacated (Klein v. Vernon Lumber Corp., 269 App.Div. 71, 54 N.Y.S.2d 248; Niewiadowski, v. Kulp-Waco, Inc., 279 App.Div. 974, 111 N.Y.S.2d 564). The Special Term, in its discretion, had power to vacate the dismissal under rule 302 (Schlesinger v. Spingler-Van Beuren Estates, 269...