Hummeil v. Belanich
| Decision Date | 25 May 1978 |
| Citation | 63 A.D.2d 802,405 N.Y.S.2d 149 |
| Parties | Robert HUMMEIL et al., Respondents, v. John BELANICH et al., Defendants and Third-Party Plaintiffs-Appellants, Alfred Bush, Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
Maynard, O'Connor & Smith, Albany (Roger J. Cusick, Albany, of counsel), for appellants.
William J. Cade, Albany, for respondents.
Before MAHONEY, P. J., and GREENBLOTT, KANE, MAIN and MIKOLL, JJ.
Appeal from an order of the Supreme Court at Special Term, entered August 17, 1977 in Albany County, which granted plaintiffs' motion to restore the within action to the Trial Calendar.
Although plaintiffs' motion should have been styled as one to vacate the automatic dismissal of their complaint rather than one to restore their action to the Trial Calendar, the distinction is of no importance for we will so treat it and apply the standard for determining such an application. We accept the reasonableness of plaintiffs' excuse for failing to have this matter timely removed from the Deferred Calendar, but Special Term lacked a proper basis for the exercise of its discretion to grant the requested relief because plaintiffs made no attempt whatever to demonstrate that they possessed a meritorious cause of action. Accordingly, the order appealed from should be reversed with leave to plaintiffs to renew their motion should ...
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Merrill v. Robinson
...was not cast in the proper form, we shall ignore the defect and treat the motion as one to vacate the dismissal (see Hummeil v. Belanich, 63 A.D.2d 802, 405 N.Y.S.2d 149). When a case in Supreme Court is marked "off" the calendar and not restored within one year thereafter, the dismissal pr......
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Baumgartner v. Foodarama Supermarkets, Inc.
...to restore, plaintiffs should be afforded a further opportunity to demonstrate a meritorious cause of action (see Hummeil v. Belanich, 63 A.D.2d 802, 405 N.Y.S.2d 149; Williams v. Giattini, 49 A.D.2d 337, 374 N.Y.S.2d Accordingly, the motion is denied without prejudice to its renewal upon p......
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Echevarria v. Bank
...Term apparently did, as one made, inter alia, to vacate the underlying judgment dismissing plaintiff's complaint (see, Hummeil v. Belanich, 63 A.D.2d 802, 405 N.Y.S.2d 149; Sal Masonry Contrs. v. Arkay Constr. Corp., 49 A.D.2d 808, 373 N.Y.S.2d 424; Wavrovics v. City of New York, 13 A.D.2d ......
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Van Sant v. Hall
...one to vacate the automatic dismissal of his complaint rather than one to restore the action to the court's calendar (Hummeil v. Belanich, 63 A.D.2d 802, 405 N.Y.S.2d 149), we are of the opinion that restoration of this case to the County Court calendar was an improvident exercise of discre......