Keller v. Finnerty

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DAMIANI
• Citation: Keller v. Finnerty, 432 N.Y.S.2d 112, 78 A.D.2d 635 (N.Y. App. Div. 1980)
• Decision Date: 06 October 1980
• Parties: Joan S. KELLER, as Administratrix, etc., Respondent, v. Thomas J. FINNERTY et al., Appellants.

Page 112

432 N.Y.S.2d 112

78 A.D.2d 635

Joan S. KELLER, as Administratrix, etc., Respondent, v. Thomas J. FINNERTY et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Oct. 6, 1980.

Appelbaum & Eisenberg, Liberty (Harold J. Bauman, Liberty, of counsel), for appellant Thomas J. Finnerty.

Cline, MacVean, Lewis & Sherwin, P. C., Middletown (Monte J. Rosenstein, Middletown, of counsel), for appellants Jeffrey W. Kirk, William Bernicker and B. C. & M. Enterprises, Inc.

David Gale, New York City, for respondent.

Before DAMIANI, J. P., and LAZER, MANGANO and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for wrongful death and conscious pain and suffering, defendants appeal from an order of the Supreme Court, Orange County, dated December 7, 1979, which granted plaintiff's motion to vacate the dismissal of this action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Order reversed, on the law, with one bill of $50 costs and disbursements payable jointly to defendants appearing separately and filing separate briefs, and plaintiff's motion is denied.

It was an improvident exercise of discretion to vacate the automatic dismissal which had been entered pursuant to CPLR 3404. Plaintiff failed to make the requisite showing of facts sufficient to excuse her delay in prosecution. After the case was marked "off" the calendar on ...