Opinion
June 26, 1967
In a negligence action to recover damages for personal injuries, defendant De Pitt's Mountain Lodge, Inc., appeals from an order of the Supreme Court, Suffolk County, dated January 9, 1967, which granted plaintiff's motion to vacate the dismissal of the action and to restore the action to the trial calendar on condition that plaintiff's attorney pay $250 costs. Order reversed, without costs, and motion denied. The accident occurred on February 21, 1960. Following the commencement of the action, issue was joined on November 30, 1961. A note of issue without a statement of readiness was filed for the June 1962 Term. A motion for a general preference was denied on June 21, 1962. An additional and further examination before trial of plaintiff was held on August 28, 1962. On May 20, 1963 the action was stricken from the trial calendar for plaintiff's failure to file a statement of readiness within one year, as required by Part 7, Rule VIII of the Rules of this court. On May 6, 1965, the action was dismissed as an abandoned action pursuant to CPLR 3404. Nineteen months later and on December 5, 1966 plaintiff made the motion now under review. The excuse offered for the omission to file a statement of readiness and for the further delay in moving to open the default was "inadvertence". In our opinion, the proffered excuse of "inadvertence" is insufficient to warrant the relief granted ( Becker v. West, 15 A.D.2d 494; Green v. Long Is. School of Aeronautics, 12 A.D.2d 640; Weaver v. Logan, 20 A.D.2d 581; Dawkins v. Mandelson, 20 A.D.2d 713). Christ, Acting P.J., Rabin, Hopkins and Benjamin, JJ., concur; Munder, J., dissents and votes to affirm the order, with the following memorandum: I think there was a sufficient showing of merit in plaintiff's cause of action and excusable inadvertence on her attorney's part, caused to some extent by the general calendar delay in Suffolk County, and probably also contributed to by the refusal of the named defendants to identify a third possible defendant, who they claim is primarily liable. The presumption of abandonment under CPLR 3404 has here been sufficiently rebutted ( Marco v. Sachs, 10 N.Y.2d 542).