Nystrom v. National Airlines, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Nystrom v. National Airlines, Inc., 246 N.Y.S.2d 882, 20 A.D.2d 665 (N.Y. App. Div. 1964)
• Decision Date: 22 January 1964
• Parties: Elizabeth NYSTROM, Respondent, v. NATIONAL AIRLINES, INC., Appellant.

Page 882

246 N.Y.S.2d 882

20 A.D.2d 665

Elizabeth NYSTROM, Respondent, v. NATIONAL AIRLINES, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 22, 1964.

Bigham, Englar, Jones & Houston, New York City, for appellant; William M. Keegan, New York City, of counsel.

Cusack, McLaughlin & O'Rourke, New York City, for respondent; Thomas Grimes, Brooklyn, of counsel.

Before BELDOCK, P. J., and CHRIST, BRENNAN, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action, defendant appeals from an order of the Supreme Court, Queens County, dated July 30, 1963, which inter alia: (1) granted plaintiff's motion to vacate the dismissal of her complaint for failure to file a statement of readiness; and (2) restored the action to the trial calendar.

Order reversed, without costs; motion denied; action struck from the calendar; and judgment (or order) of dismissal reinstated.

Plaintiff is alleged to have sustained injuries in August 1954, while she was a passenger aboard defendant's aircraft. In December, 1954, plaintiff commenced this action in the Supreme Court, Queens County, by the service of a summons. In January, 1955 a complaint followed and in the same month issue was joined. A note of issue was filed for the February, 1955 Term; the action was assigned a jury calendar number; and it was placed on the trial calendar. Thereafter, defendant examined plaintiff before trial and pre-trial conferences were held. In September, 1957 plaintiff served a statement of readiness upon defendant's attorneys. However, a copy of that statement apparently was not received by the Clerk of the Supreme Court. In October, 1957 the action was marked off the calendar and, in October, 1958 the action was dismissed pursuant to subdivision e of rule II of the Queens County Supreme Court rules.

In May, 1960 the member of plaintiff's attorneys' firm who was in charge of the action died.

In July, 1963 plaintiff moved...