Dmytrenko v. Atkins

Order unanimously reversed, without costs, and motion denied. Memorandum: This action was commenced on August 14, 1965 to recover damages for injuries sustained on January 7, 1965. The case was placed on the general docket on February 5, 1968 and was deemed abandoned on February 5, 1969 (CPLR 3404). On August 26, 1971 plaintiff moved to restore the case to the calendar on the affidavit of his attorney showing that the case was removed from the Trial Calendar in February, 1968 so that a declaratory judgment action by defendant Rigby’s insurance company could be tried first; that plaintiff’s first attorney Namisniak died on October 17, 1968; that plaintiff retained a second attorney Rybarczyk and affiant was substituted as attorney on March 18, 1971 when Rybarczyk was appointed Cayuga County Judge. There is no affidavit by plaintiff or by his former attorney Rybarczyk. Plaintiff failed to show that anything had been done on his behalf in the prosecution of his action from February, 1968 until August 26, 1971 and also failed to state meritorious reasons for its restoration to the calendar as required by section 1024.13 of the Supreme Court (4th Dept.) Rules (22 NYCRR 1024.13 [a]). The granting of the order was an improvident exercise of discretion. (Appeals from order of Cayuga Special Term restoring action to Trial Calendar.) Present — Del Yecchio, J. P., Witmer, Moule, Cardamone and Henry, JJ.