Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ.
Claimant appeals from an order of the Court of Claims which dismissed his claim for failure to prosecute. The claimant alleges that he was injured, due to a negligently permitted icy condition, on the Thruway on December 9, 1956. By permission of the Court of Claims he filed a late claim on September 21, 1957. The case was on the calendar and marked ready for trial at five terms. Eventually the case was reached for trial on February 15, 1960, but an adjournment was granted at claimant's request because his trial counsel was in California. The Clerk of the court then notified all counsel, by letter dated February 26, 1960, that the action had been set for trial as the third case of the week of May 9, 1960. On May 11 claimant started on a two-week Caribbean cruise. His counsel sought still a further adjournment because claimant's doctor had advised an extended vacation in a warm climate. The "extended" vacation of two weeks coincided with the date fixed by the court for trial after numerous previous opportunities to try the claim. Under such circumstances we should not say that there was an abuse of discretion by the Presiding Judge in granting an order relating to calendar practice. ( Stern v. State of New York, 11 A.D.2d 585.) Order unanimously affirmed, without costs.