Radar-Electronics, Inc. v. Oscar Leventhal, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BREITEL; PER CURIAM; JAMES B. M. McNALLY; RABIN
• Citation: Radar-Electronics, Inc. v. Oscar Leventhal, Inc., 186 N.Y.S.2d 107, 8 A.D.2d 778 (N.Y. App. Div. 1959)
• Decision Date: 04 June 1959
• Docket Number: RADAR-ELECTRONIC,I
• Parties: nc., Plaintiff-Respondent, v. OSCAR LEVENTHAL, INC. and Ajax Machine and Water Cooler Corp., Defendants-Appellants.

Page 107

186 N.Y.S.2d 107

8 A.D.2d 778

RADAR-ELECTRONICS, Inc., Plaintiff-Respondent, v. OSCAR LEVENTHAL, INC. and Ajax Machine and Water Cooler Corp., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 4, 1959.

Myle J. Holley, New York City, of counsel (Myle J. Holley, New York City, attorney for appellant Oscar Leventhal, Inc.; William J. Kenney, New York City, attorney for appellant Ajax Machine and Water Cooler Corp.), for appellants.

Israel W. Tannenbaum, New York City, of counsel (Louis H. O. Fischman, New York City, attorney), for respondent.

Before BREITEL, J. P., and RABIN, M. M. FRANK, VALENTE and McNALLY, JJ.

PER CURIAM.

Order modified in the exercise of discretion to the extent of striking the provisions which restores the case to the General Jury Calendar, without prejudice to an application for such restoration when there has been compliance with the Special Rules, and, as so modified, affirmed without costs. The order of Trial Term vacated a dismissal of a complaint pursuant to Rule 302 of the Rules of Civil Practice, and restored the cause to the General Jury Calendar for a day certain. While the notice of motion was technically faulty in seeking specifically only a restoration to the calendar, when it should have asked to open the default, to vacate the dismissal and thereupon to restore the case to the trial calendar (see Niewiadowski v. Kulp-Waco, Inc., 279 App.Div. 974, 111 N.Y.S.2d 564; Klein v. Vernon Lumber Corporation, 269 App.Div. 71, 54 N.Y.S.2d 248; Siegel v. Addison, 207 Misc. 1005, 127 N.Y.S.2d 578), the Trial Term Justice properly treated the motion as one complying with the technical requirements under the general prayer of the notice of motion for other and further relief. Since there was a showing of a reasonable excuse for the default, and the affidavit of the plaintiff indicated a meritorious claim, the opening of the default and vacating the dismissal was a proper exercise of discretion. However, even though the point was raised for the first time in this Court, the restoration of the cause to the General Jury Calendar may not stand. Under subdivision C of the New York County Special Rule Respecting Calendar Practice, no application to restore a case marked off may be heard unless it appears that the case qualifies for placement on the calendar under subdivision A--which requires the filing of a statement of readiness. Since the record does not show that plaintiff has qualified under subdivisions A and C of the Special Rules, the case should not have been restored...