Schwartz v. Cuozzo

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MUNDER, J., dissents and votes to reverse the order and deny plaintiff's motion, with the following memorandum, in which HOPKINS
• Citation: Schwartz v. Cuozzo, 337 N.Y.S.2d 11, 40 A.D.2d 726 (N.Y. App. Div. 1972)
• Decision Date: 30 October 1972
• Parties: Rose SCHWARTZ, as Executrix, etc., Respondent, v. Anthony CUOZZO et al., Appellants.

Page 11

337 N.Y.S.2d 11

40 A.D.2d 726

Rose SCHWARTZ, as Executrix, etc., Respondent, v. Anthony CUOZZO et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Oct. 30, 1972.

Before RABIN, P.J., and LATHAM, SHAPIRO, MUNDER and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death and conscious pain and suffering, defendants appeal from an order of the Supreme Court, Nassau County, dated March 8, 1972, which (1) granted plaintiff's motion to vacate a dismissal of the action for failure to file a statement of readiness and to restore the action to the trial calendar and (2) directed plaintiff's attorneys to personally pay $200 costs to defendants' attorneys.

Order modified by increasing the amount of costs which plaintiff's attorneys were directed to pay to $300. As so modified, order affirmed, without costs.

In our opinion, the facts warranted the granting of plaintiff's motion upon the payment of costs as directed by Trial Term (Moran v. Rynar, 39 A.D.2d 718, 332 N.Y.S.2d 138; Douglaston Estates v. Consolidated Edison Co. of N.Y., 39 A.D.2d 705, 332 N.Y.S.2d 403), except that the amount of the costs should have been set at $300.

SAMUEL RABIN, P.J., and LATHAM and SHAPIRO, JJ., concur.

MUNDER, J., dissents and votes to reverse the order and deny plaintiff's motion, with the following memorandum, in which HOPKINS, J., concurs:

This appeal involves an automatic dismissal under CPLR 3404 of an action deemed abandoned for neglect to prosecute. The action arose out of an automobile accident in which plaintiff's testator was injured in May, 1964. The action was commenced in June, 1964. The testator died in August, 1964 and an amended complaint was eventually served which contained two causes of action, one for personal injuries and the other for wrongful death. This amended complaint was served in January, 1967. On September 10, 1968, in response to a 45-day demand made by one of the defendants under CPLR 3216, plaintiff timely served and filed a note of issue but no statement of readiness. This is permitted by our Rule 675.8 (22--A NYCRR 675.8) provided the statement of readiness is filed within one year after filing the note of issue. Plaintiff failed to do this and the action was struck from the calendar by the clerk on September 10, 1969. That brought Rule 3404 into play: nothing was done to restore the action within one year of its being struck, so it was deemed abandoned and dismissed on September 10, 1970. Fifteen months later, in December, 1971, plaintiff moved to restore and the motion was granted, with a direction that plaintiff's attorney personally pay $200 in costs. I conclude the granting of the relief was improper.

An action struck from the calendar and not restored within one year is deemed abandoned and automatically dismissed, unless it appears conclusively that the parties did not intend to abandon the action (see Marco v. Sachs, 10 N.Y.2d 542, 550, 226 N.Y.S.2d 353, 357, 181 N.E.2d 392, 395; Boyle v. Krebs & Schulz Motors, 18 A.D.2d 1010, 1011, 239 N.Y.S.2d 143, 145). In other words, the phrase 'deemed abandoned' as contained in CPLR...