Opinion
May 31, 1973
Appeal from an order of the Court of Claims, entered on March 22, 1972, which denied a motion to restore the claim to the calendar of the Court of Claims. Appellant's claim was dismissed, pursuant to the provisions of rule 7 of the Court of Claims ( 22 NYCRR 1200.8), upon the failure of its attorney to appear or be represented at a calendar call. In order to grant a dismissal under the provisions of this rule it must affirmatively appear that the State is ready to proceed to trial. The record does not support such a finding and the motion to dismiss should not have been granted. Accordingly, the motion to restore the claim to the calendar, which we construe as a motion to vacate the order of dismissal, should have been granted. Order reversed, on the law and the facts, without costs, and claim restored to calendar for trial. Staley, Jr., J.P., Cooke, Sweeney, Kane and Main, JJ., concur.