Empire Mutual Insurance v. Rigby

Order unanimously reversed, with costs, and motion denied. Memorandum: This action was commenced on October 25, 1965 for a judgment declaring that plaintiff was not legally obligated to defend defendant Rigby in an action brought against him by Michael Dmytrenko for injuries sustained on January 7, 1965. On December 6, 1967 the action was removed from the calendar and placed on the general docket and on December 6, 1968 it was deemed abandoned (CPLR 3404). On September 2, 1971 plaintiff moved for an order to restore the action to the calendar on the affidavit of its attorney which failed to show that anything had been done by plaintiff in the action from December 6, 1967 until September 2, 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]). f 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 Veeehio, J. P., Witmer, Moule, Cardamone and Henry, JJ,