Becker v. West

The accident occurred in January, 1954; the action was commenced in January, 1955; and issue was joined the following month. On October 2, 1957, the action was struck from the calendar because of plaintiffs’ failure to file a statement of readiness. One year later, the action was dismissed pursuant to rule 302 of the Rules of Civil Practice. About two years after the dismissal of the complaint, an attorney who was retained of counsel by the attorney for plaintiffs, moved to open plaintiffs’ default. The excuse offered was “ inadvertence.” Plaintiffs’ attorney did not submit his own affidavit. In our opinion, no proper legal excuse was shown for the omission to file the requisite statement of readiness and for plaintiffs’ delay in moving to open their default. Under the circumstances, the granting of the motion was an improvident exercise of discretion (Green v. Long Is. School of Aeronautics, 12 A D 2d 640; Abbey v. Trynin, 9 A D 2d 913). Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ.,, concur.