Opinion
July 12, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal by claimants from an order of the Court of Claims denying a motion to vacate an order dismissing their claims for failure to prosecute. The claims were for personal injuries sustained by claimants on January 19, 1953 in a one-car accident allegedly caused by the negligent maintenance of a State highway. Notice of intention to file claims was filed in February, 1953. The claims were filed in December, 1954. The attorney of record has remained the same all during the pendency of these claims, although three different trial counsel have been in the cases, two of them having returned the file to the attorney of record. The claims have appeared on the calendars for approximately four and one-half years; so far as appears the attorney of record has never appeared at a calendar call, and the claims were marked over the term on a number of occasions. The record does not disclose any effort at any time on behalf of the claimants to bring the claims to trial. Finally, the attorney of record was notified on June 11, 1959 that the claims were set down for trial or dismissal at a term to be held on June 16, 1959. At the opening of court there was no appearance on behalf of the claimants, and the claims were dismissed pursuant to rule 7 of the Rules of the Court of Claims. Upon the motion to vacate the order of dismissal trial counsel contended that he was engaged in another court on June 16, 1959. After oral argument the Court of Claims denied the application to vacate the dismissal. The delay in the trial of these cases would seem inexcusable, and certainly the attorney of record owed a duty to the court to appear or to see that someone else appeared on the day when the cases were set down for trial. The order was discretionary, and under the circumstances we do not think that the court's discretion was abused. ( Stern v. State of New York, 10 A.D.2d 585.) Order unanimously affirmed, without costs.