Opinion
January 10, 1995
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court, sua sponte, dismissed this action for failure to prosecute, when, on the date the court had set the matter down for trial, plaintiff's counsel, with a note of issue in hand, as directed, stated that, as an officer of the court, he could not file a certificate of readiness with unresolved discovery issues outstanding. Counsel also advised the court that the parties were in the process of settlement negotiations. At the time, plaintiff had a motion pending to compel answers to deposition questions. Before dismissing the action, the IAS Court advised counsel that it would deny the pending motion for failure to seek its permission, as required by the Rules of the Part. We reverse.
The inherent power of courts to control their own calendars and the disposition of business is not the issue here. As we view this record, the IAS Court abused its discretion in dismissing, sua sponte, this actively prosecuted action in the face of a legitimate request for an adjournment and summarily refusing to consider the merits of a properly noticed motion. (See, Rios v New York City Tr. Auth., 35 A.D.2d 804; Buckley v. St. Bernard's School, 28 A.D.2d 701.) In that regard, we note that the conditioning of the making of motions on prior judicial approval is violative of a party's statutory rights (Matter of Hochberg v Davis, 171 A.D.2d 192).
It is clear that counsel's unwillingness to proceed was not willful. Moreover, plaintiff appears to have a meritorious cause of action. The public policy of this State prefers that cases be decided on the merits.
Concur — Murphy, P.J., Sullivan, Rosenberger and Asch, JJ.