McNamara v. Hutchinson

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: McNamara v. Hutchinson, 304 N.Y.S.2d 790, 33 A.D.2d 26 (N.Y. App. Div. 1969)
• Decision Date: 06 November 1969
• Parties: Leonard McNAMARA et al., Respondents, v. Stanley R. HUTCHINSON, Appellant.

Page 790

304 N.Y.S.2d 790

33 A.D.2d 26

Leonard McNAMARA et al., Respondents, v. Stanley R. HUTCHINSON, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 6, 1969.

John J. Sweeney, Troy (John J. Sweeney, Jr., Troy, of counsel), for respondents.

George P. Bluhm, Latham (Friedman, Ladd & Maksail, by Harold A. Friedman, Schenectady, of counsel), for appellant.

Before HERLIHY, P.J., REYNOLDS, STALEY, and GREENBLOTT, JJ.

PER CURIAM.

This is an appeal from an order of the Supreme Court, entered November 1, 1968, in Rensselaer County, which opened respondents' default in failing to restore the action to the calendar for trial within one year after it was marked 'off' the said calendar, pursuant to the provisions of Rule 2.17 of the Rules for Trial and Special Terms of Supreme Court, Third Judicial Department (22 NYCRR 861.17), and restored the action to the Day Calendar.

As a result of an automobile accident which occurred on August 13, 1959 each of the plaintiffs-respondents instituted separate actions which were commenced on July 31, 1962 with issue being joined in each action on September 4, 1962. The three actions were consolidated for trial by order dated February 19, 1963. Examinations before trial of all parties were held on October 17, 1963. The action was placed on the general calendar in September, 1966 and on May 1, 1967 the action was transferred from the Day Calendar to the Deferred Calendar by reason of respondents' failure to answer the call of the Day Calendar. On or about May 1, 1968 the consolidated action was dismissed for neglect to prosecute pursuant to Rule 2.17.

The said rule entitled 'Dismissal of Abandoned Cases', provides:

'A case not removed from the Deferred Calendar within one year after it shall have been transferred thereto shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute, in the manner provided by CPLR 3404.'

CPLR 3404, entitled 'Dismissal of abandoned cases', provides:

'A case in the supreme court or a county court marked 'off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.'

A plaintiff may, under certain circumstances, be relieved of his default, and the court may exercise its discretion to vacate the default upon affidavits showing that the action has merit and the delay was excusable. (Boyle v. Krebs & Schulz Motors, 18 A.D.2d 1010, 239 N.Y.S.2d 143; Charles Barnett Co. v. St. Paul Fire & Mar. Ins. Co., 7 A.D.2d 897, 181 N.Y.S.2d 890.) The affidavit of merit must be by either a party or one having knowledge of the facts and must set forth evidentiary, not conclusory, facts demonstrating a viable cause of action. (Hall v. Wabik, 27 A.D.2d 983, 278 N.Y.S.2d 784; Frenia v. Patno, 25 A.D.2d 591, 266 N.Y.S.2d 1010.)

Respondent's affidavit on the motion states that his automobile was struck in the rear end by appellant's automobile, and that the plaintiffs suffered personal injuries by reason of the collision. It may be assumed that such affidavit satisfied the requirement of showing that the action had merit. The real issue on this appeal is whether or not respondents have shown facts sufficient to excuse the delay. Respondents appear to rely on the affidavits of their attorney to establish the excuse for the delay. The only allegations in support of their position are the statements made by their attorney that the action was marked 'off' the calendar through inadvertence and mistake, and further because negotiations with appellant's insurance carrier had continued after the action had been transferred to the Deferred Calendar. It is conceded that an adjuster for appellant's insurance carrier attempted to contact respondents' attorney about eight months before the dismissal without success, and that no further contact was had. It should be further noted that the respondents' claim that...