Opinion
June 25, 1956
In an action to recover damages for an alleged breach of contract, order denying a motion to dismiss the complaint for lack of prosecution reversed, with $10 costs and disbursements, and motion granted. The action was commenced in June, 1953 and a note of issue was filed for the March, 1954 term. The case was called for trial in March, 1954 and marked off the calendar. Thereafter, it was again called, and again marked off in March, 1955. At the time the motion to dismiss was made, it had not been restored to the calendar. It was consequently deemed abandoned, and it was the duty of the clerk to make an appropriate entry of the dismissal of the complaint without further order (Rules Civ. Prac., rule 302; Westchester County Supreme Court Rules, rule 3, subd. [h]). Under such circumstances, if it be assumed that respondent could move to restore the action to the trial calendar without an order opening her default (cf. Klein v. Vernon Lbr. Corp., 269 App. Div. 71; Niewiadowski v. Kulp-Waco, 279 App. Div. 974), she should have served a cross notice of motion for such relief (Civ. Prac. Act, § 117; Helfand v. Massachusetts Bonding Ins. Co., 197 App. Div. 759) and should have established by appropriate affidavits reasonable excuse for her delay ( Lange v. Bagish, 285 App. Div. 833; Ferber v. Newgold, 133 App. Div. 739) and that the cause of action asserted in her complaint was meritorious ( Brassner Mfg. Co. v. Consolidated Edison Co., 1 A.D.2d 840; Fassett v. Valley Feed Supply Co., 283 App. Div. 1081; Smith v. Schiller, 279 App. Div. 755). No cross motion was made, nor did the affidavit submitted in opposition to the motion disclose any sufficient excuse for respondent's neglect to prosecute the action or that there was any merit to the cause of action asserted. Under such circumstances, the denial of the motion was an improvident exercise of discretion. Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.