Von Diezelski v. Food Fair Stores, Inc.

• Decision Date: 26 December 1962
• Citation: Von Diezelski v. Food Fair Stores, Inc., 236 N.Y.S.2d 603, 18 A.D.2d 724 (N.Y. App. Div. 1962)
• Parties: Marie VON DIEZELSKI and William Von Diezelski, Appellants, v. FOOD FAIR STORES, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 603

236 N.Y.S.2d 603

18 A.D.2d 724

Marie VON DIEZELSKI and William Von Diezelski, Appellants, v. FOOD FAIR STORES, INC., Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 26, 1962.

Shapiro, Driscoll & Gottschalk, Franklin Square, for appellant; Thomas L. Driscoll, Jr., Franklin Square, of counsel.

Santangelo, Morrison & Martorano, New York City, for respondent; Anthony R. Martorano, New York City, of counsel.

Before BELDOCK, P. J., and KLEINFELD, BRENNAN, HILL and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, medical expenses and loss of services resulting from the female plaintiff's fall in defendant's store caused by an accumulation of ice and water on the floor near a watermelon display case, plaintiffs appeal from an order of the Supreme Court, Queens County, dated May 21, 1962, which denied their motion (a) to vacate a dismissal of the action in December, 1957, pursuant to the provisions of rule II(e) of the Queens County Supreme Court Rules, and of subdivision 2 of rule 302 of the Rules of Civil Practice; and (b) to restore the action to the nonjury trial calendar of the court.

Order affirmed, with ten dollars costs and disbursements.

A case marked 'off' the calendar which is not restored within one year thereafter is deemed abandoned and is automatically dismissed for failure to prosecute (rule II(e) of the Queens County Supreme Court Rules; Rules Civ.Prac., rule 302, subd. 2; Balaka v. Stork Restaurant, Inc., 3 A.D.2d 857, 161 N.Y.S.2d 735; Roe v. Kurkhill, 6 A.D.2d 716, 174 N.Y.S.2d 573; Colombik v. Heinrich, 11 A.D.2d 1026, 205 N.Y.S.2d 921). A dismissal under the above rules may be vacated and the case may be restored upon a showing of facts sufficient to excuse the delay, as well as a showing of merits (Colombik v. Heinrich, supra; Klein v. Vernon Lumber Corp., 269 App.Div. 71, 54 N.Y.S.2d 248). In our opinion, the excuse offered in this case for the delay, which extended over a period of five years, was insufficient to warrant the relief sought (Siegel et al. v. City of New York, 16 A.D.2d 679; Topp v. Casco Products Corp., 8 A.D.2d 727, 187 N.Y.S.2d 66; O'Rourke v. City of New York, 3 A.D.2d 713, 159 N.Y.S.2d 366).

The contention that rule II(e) of the Queens County Supreme Court Rules and rule 302 of the Rules of Civil Practice are unconstitutional, in that an automatic dismissal constitutes a denial of due process, was not raised in the court...