Monahan v. Fiore

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'CONNOR
• Citation: Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745 (N.Y. App. Div. 1979)
• Decision Date: 20 August 1979
• Parties: Deborah C. MONAHAN, an infant, etc., et al., Respondents, v. Fabian J. FIORE, Appellant, et al., Defendants.

Page 745

419 N.Y.S.2d 745

71 A.D.2d 914

Deborah C. MONAHAN, an infant, etc., et al., Respondents, v. Fabian J. FIORE, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Aug. 20, 1979.

J. Robert Morris, New York City (Joseph D. Ahearn, New York City, of counsel), for appellant.

Bases, Russo, Lawrence, Ciovacco & Feder, P. C., Garden City (Morton H. Feder, Garden City, of counsel), for respondents.

Before O'CONNOR, J. P., and LAZER, GULOTTA and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries etc., which was dismissed pursuant to CPLR 3404, defendant Fiore appeals from an order of the Supreme Court, Queens County, dated December 6, 1978, which granted plaintiffs' motion to vacate the dismissal of the action and restore the action to the trial calendar. (By order dated May 14, 1979 the appeal of codefendants Klosowski was dismissed by this court.)

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

In our opinion, plaintiffs failed to make the requisite showing of facts sufficient to excuse their delay in prosecution and to establish a meritorious cause of action (see Casamassina v. Sutton Assoc., 54 A.D.2d 682, 387 N.Y.S.2d 265).

The record reveals that the accident occurred on March 8, 1971, the action was commenced in May, 1972, issue was joined during the following month, and plaintiffs' note of issue and statement of readiness was filed on November 14, 1974, together with an application for a trial preference.

However, on April 7, 1975, the original firm engaged by plaintiffs' attorney as trial counsel had the case voluntarily removed from the trial calendar allegedly on the ground that the medical investigation to establish a causal relationship between the accident and the infant plaintiff's claim of traumatic epilepsy, could not be completed before the case was reached for trial. On April 8, 1976 the clerk marked the case "dismissed" because a year had elapsed since it was marked off the calendar and it had not been restored during that period (see CPLR 3404). The within motion to restore the case was brought by plaintiffs on November 10, 1978.

The alleged excuses for the delay of 31/2 years between the marking of the case off the trial calendar and the instant motion to restore, are (1) settlement negotiations commenced before the case was marked off the calendar continued until six months thereafter when they were unsuccessfully terminated, and (2) the medical investigation into the causal connection between the accident and infant plaintiff's traumatic epilepsy was delayed during settlement negotiations, and the finalization of such investigation was further delayed by certain difficulties between plaintiffs' original trial counsel firm and the partner handling the case, which resulted in the latter's resignation from the firm in October, 1976. We find such reasons insufficient either to refute the presumption of abandonment or to reasonably explain the delay (cf. Peterson v. Motor Sales Co. of Kingsport, 35 A.D.2d 847, 848, 317 N.Y.S.2d 155, 156).

That settlement negotiations have occurred between representatives of both the opposing parties, is sometimes a reasonable excuse for not taking any particular action while the negotiations are...