Opinion
March 21, 1960
In an action to recover damages for personal injuries, the appeal is from an order denying appellants' motion for renewal and reconsideration of their motion (1) to open their default because of their failure to file a statement of readiness on or before October 1, 1957 (Rules App. Div. [2d Dept.], special rule eff. Jan. 15, 1957, as amd.) and their failure to procure the restoration of the action to the calendar within one year after the action had been struck from the calendar, by reason of which the action was deemed abandoned and the complaint dismissed (Rules Civ. Prac., rule 302), and (2) for permission to file such a statement of readiness. Order modified by striking from the ordering paragraph everything following the words "hereby is" and by substituting therefor the words "granted, and it is further Ordered that, upon such renewal and reconsideration, plaintiffs' default is opened". As so modified, order affirmed, without costs. Appellants shall, within 10 days after the entry of the order hereon, file a statement of readiness with a certified copy of said order, whereupon the action is to be restored to the Trial Term Calendar of the Supreme Court, Kings County. On October 2, 1958 the action was deemed abandoned and the complaint was dismissed. On February 17, 1959 an order was entered denying appellants' motion to open their default "without prejudice" to a renewal thereof on proper papers. Appellants thereupon made the instant motion for renewal and reconsideration. The learned Special Term denied the instant motion solely upon the ground that, since appellants had instituted a second action in November, 1958 which was identical with the original action, there was an abandonment of the original action with respect to which the instant motion was addressed. It appears that the second action was instituted in the mistaken belief that appellants' rights would be preserved, if they should thereafter be denied leave to open their default. Under the circumstances disclosed by this record it is our opinion that appellants have shown that there is merit to their causes of action and have shown a sufficient excuse for their failure timely to move to open their default. The facts do not indicate that appellants abandoned the original action, and respondents have not shown that their position has been prejudiced. Under the circumstances the Special Term should have exercised its discretion in favor of granting the motion. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.