SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 23, 1969
MICHAEL E. BERNSOHN, BY HIS GUARDIAN AD LITEM RUTH LEVY, ET AL., RESPONDENTS,
STATE DORMITORY AUTHORITY, DEFENDANT. MICHAEL E. BERNSOHN, RESPONDENT, V. ROGER & MCCAY, INC., ET AL., APPELLANTS, ET AL., DEFENDANT. ROGER & MCCAY, INC., THIRD-PARTY PLAINTIFF-APPELLANT, V. CHEROKEE PLATE GLASS CO., THIRD-PARTY DEFENDANT
Concur -- Stevens, P. J., Eager, Tilzer, McNally and Bastow, JJ.
This action to recover damages for injuries alleged to have been sustained by plaintiff in December, 1959 through the negligence of defendants was commenced in February, 1964. In December, 1965 a note of issue was filed without a statement of readiness. The action was dismissed (CPLR 3404) on January 3, 1967. Some two years later, in January, 1969, plaintiff moved to restore the case to the calendar. We conclude that the granting of such relief was an improvident exercise of discretion. The principal excuse proffered was that the statement of readiness was not filed through clerical error of the attorney and that such oversight was not discovered until some three years later. Such an excuse is insufficient (Sortino v. Fisher, 20 A.D.2d 25, 29).
Order entered April 11, 1969 unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, and the motion to restore the action to the calendar denied.
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