Zaldua v. Metropolitan Suburban Bus Authority
| Decision Date | 28 November 1983 |
| Citation | 468 N.Y.S.2d 917,97 A.D.2d 842 |
| Parties | Magaly ZALDUA, Respondent, v. METROPOLITAN SUBURBAN BUS AUTHORITY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Curtis, Hart & Zaklukiewicz, Merrick (David Holmes, Merrick, of counsel), for appellant.
Paul S. Mirman, P.C., Brooklyn, for respondent.
Before DAMIANI, J.P., and MANGANO, GULOTTA and BROWN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Nassau County, dated December 3, 1982, which, upon plaintiff's motion, conditionally vacated (1) a prior order of the same court (KELLY, J.), granting defendant's motion for leave to enter judgment against plaintiff for, inter alia, failure to prosecute, and (2) a judgment dated December 28, 1981 against plaintiff, dismissing the complaint.
Order reversed, as a matter of discretion, with costs, and plaintiff's motion to vacate the order and judgment dismissing her complaint denied.
This action was commenced in March, 1979 to recover for personal injuries allegedly sustained while plaintiff was a passenger on a bus owned and operated by defendant. Issue was joined on April 3, 1979. What followed was over three years of laxity and neglect on the part of plaintiff's attorneys. Depositions were scheduled and adjourned at plaintiff's attorneys' request on 16 separate occasions over a course of two years. Then there ensued three scheduled court-ordered depositions at which plaintiff's attorneys never appeared and plaintiff appeared once. In the interim, plaintiff's attorneys did not submit a bill of particulars until ordered to do so by the court, only partially complied with a court order compelling discovery, failed to pay sanctions as imposed by the court, and failed to attend a pretrial conference. Ultimately, plaintiff herself left the country during August, 1981 and stayed out of the country for a period of approximately seven months during which time she did not contact her attorneys. By notice of motion dated October 14, 1981, defendant moved for leave to enter judgment against plaintiff, and said motion was granted without opposition by order of the Supreme Court, Nassau County (KELLY, J.), dated November 10, 1981. Thereafter, judgment was entered thereon. By notice of motion dated August 25, 1982, plaintiff moved to vacate the default judgment, alleging that she had no intent to abandon her claim. Plaintiff's attorneys claimed that her file had been misplaced and had not been recovered until June, 1982. Plaintiff's attorneys also argued that "[c]ourts have been loathe to dismiss an action on default, where no fault lies with a client and the fault, if any, is with the attorneys". Special Term conditionally vacated the order and judgment. We reverse.
In order to justify vacatur of a default based upon a failure to prosecute, plaintiff must demonstrate a...
To continue reading
Request your trial
-
Schicchi v. J.A. Green Const. Corp.
...which demonstrates an intent to abandon the action nor do they excuse all instances of law office failure" (Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917). In recent decisions, this court has unequivocally noted that it does not view the afore-mentioned as sugge......
-
Hammer v. Hochberg
...although those provisions do not sanction conduct which demonstrates an intent to abandon the action (Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917). A review of the record discloses no intent on the part of the plaintiffs to abandon the action. Furthermore, no ......
-
Allcare Homecare Agency v. Lokshin
...brevity and non-deliberateness of the delay and a good faith intent to defend or prosecute the action (see Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917; Mineroff v. Macy's & Co., 97 A.D.2d 535, 467 N.Y.S.2d 895; Pettinato v. Sunscape At Bay Shore Home Owners As......
-
Ornstein v. Kentucky Fried Chicken of Great Neck, Inc.
...N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392, rearg. denied 11 N.Y.2d 766, 227 N.Y.S.2d 16, 181 N.E.2d 761; Zaldua v. Metropolitan Suburban Bus Auth., 97 A.D.2d 842, 468 N.Y.S.2d 917; Monacelli v. Board of Educ., 92 A.D.2d 930, 460 N.Y.S.2d 598). All of the components of the test must be sa......