Opinion
February 16, 1970
Appeal from an order of the Court of Claims, entered September 24, 1968, which dismissed claims for wrongful death and personal injuries for failure to prosecute. Claimant served notices of intention to file claims in August, 1963. Notices of claim were filed in April, 1964. On October 7, 1966 all examinations before trial were completed. At the call of the calendar beginning with September, 1965 and continuing through January, 1967, which in the Court of Claims would be four terms, claimant's attorney did not attend, was not represented, and the claims were marked ready for trial. After the calendar clerk contacted claimant's attorney by telephone on numerous occasions, the Judge set a conference at which claimant's attorney promised to appear to set a trial date. However, no representative appeared. After further delays, the Judge directed the calendar clerk to set the matter for trial for June 12, 1967. When the claimant's attorney failed to appear in court on that date, a substituted claim was tried. The motion to dismiss for failure to prosecute lies in the discretion of the court ( Milligan v. Hycel Realty Corp., 14 N.Y.2d 581). Accordingly, the record must show an abuse of discretion before such an order may be reversed. An examination of this record clearly supports the decision of the Court of Claims. Order affirmed, with costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Greenblott, J. [ 57 Misc.2d 722.]