Dahl v. S. Klein Department Stores, Inc. , 207 N.Y.S.2d 204 ( 1960 )

Mario Pittoni, J.

Motion by the plaintiff wife to vacate the dismissal and reopen the default, to restore the action to the calendar and for permission to file a statement of readiness, etc. granted.

Pursuant to rule 302 of the Rules of Civil Practice this action was stricken from the calendar for failure to file a statement of readiness. However, it has been established to my satisfaction that two previous attorneys who handled this case died. The present attorney, not without cause, assumed that the previous attorneys had filed a statement of readiness. A check of the records recently disclosed that the case had been stricken from the calendar. To deny the present application in the face of these facts would be to deny the plaintiff her rightful day in court; the Statute of Limitations would bar this action based on a 1955 accident. Furthermore, I feel a valid excuse has been given by the plaintiff-applicant; the death of her two previous attorneys, with the resultant confusion arising therefrom. The necessary affidavit of merits has been supplied and is sufficient.

Therefore, in the interest of justice and in the exercise of my discretion I grant the motion. (Imberman v. Alexander, 12 Misc 2d 630; H. R. Jacoby v. Kushner, 3 A D 2d 905; People ex rel. Weiss v. Boyland, 3 A D 2d 738; Adriance v. Clifford, 278 App. Div. 735.) Motion granted.