Monacelli v. Board of Education of City School District of City of Mt. Vernon

• Decision Date: 28 March 1983
• Citation: 460 N.Y.S.2d 598,92 A.D.2d 930
• Parties: , 10 Ed. Law Rep. 310 Benjamin P. MONACELLI, as administrator of the Goods, Chattels and Credits of Joseph Monacelli, infant, Deceased, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF MT. VERNON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 598

460 N.Y.S.2d 598

92 A.D.2d 930, 10 Ed. Law Rep. 310

Benjamin P. MONACELLI, as administrator of the Goods Chattels and Credits of Joseph Monacelli, infant Deceased, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF MT. VERNON, Appellant.

Supreme Court, Appellate Division Second Department.

March 28, 1983.

Howard S. Davis, New York City (Barry M. Hoffman, New York City of counsel), for appellant.

Marvin A. Cooper, P.C., White Plains, for respondent.

Before LAZER, J.P., and GIBBONS, THOMPSON and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a wrongful death action, defendant appeals from an order of the Supreme Court, Westchester County, entered January 29, 1982, which granted plaintiff's motion to restore the action to the trial calendar and denied defendant's cross motion to dismiss the complaint pursuant to CPLR 3404.

Order reversed, on the law, without costs or disbursements, motion denied, and cross motion granted.

According to the complaint, on February 7, 1977, plaintiff's son, Joseph Monacelli, a student at Mt. Vernon High School, Mt. Vernon, New York, fell on an icy sidewalk by the entranceway to the school. Joseph died as a result of injuries suffered in the fall.

This suit for wrongful death was commenced in April, 1978, with issue being joined the following month. On July 19, 1979, plaintiff filed a note of issue and a statement of readiness. Defendant's motion to strike the case from the calendar, for failure to complete discovery, was granted by order dated September 11, 1979 (CERRATO, J.). A subsequent motion brought by plaintiff to restore the case to the calendar was denied by order entered February 19, 1980 (GAGLIARDI, J.), with leave to renew "upon completion of all pre-trial discovery and upon papers complying fully with 22 NYCRR 675.5".

There was some activity in the case during the remainder of 1980. According to plaintiff's attorney, all the required discovery was completed by December of 1980. In October, 1981, plaintiff's attorney moved to restore the case to the calendar. He explained, in an affidavit, replying to defendant's cross motion to dismiss the complaint, that the reason for the 10-month delay between December, 1980, and October, 1981, was an "unfortunate misunderstanding in my office to the effect that since a calendar number was present in the file, it was assumed that the matter was already on the trial calendar awaiting an actual trial date".

A motion to restore a case to the calendar brought more than one year after the case has been struck from the calendar must not only comply with the requirements set forth in our rules (22 NYCRR 675.5), but must also be accompanied by a showing that the plaintiff did not intend to abandon the action (CPLR 3404; see Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392). Furthermore, the plaintiff must provide proof that his case has some merit, that his opponent has not been prejudiced by the delay, and that his tardiness is reasonably excused (Spodek v. Lasser Stables, 89 A.D.2d 892, 453 N.Y.S.2d 706; McInerney v. Bentley Inds., 87 A.D.2d 644, 448 N.Y.S.2d 745; Condurso v. Thumsuden, 84 A.D.2d 802, 444 N.Y.S.2d 151; Incorporated...