Harrell v. Broadex Realty Corp.

Plaintiffs move to vacate a dismissal of the action under rule 302 of the Rules of Civil Practice. The claim of the female plaintiff is that she suffered an aggravation to a pre-existing injury by reason of a fall on a stairway in defendant’s building on July 12, 1954. The action was commenced on September 15, 1955, issue joined on November 15, 1955 and soon after noticed for trial. Plaintiffs’ present attorneys were substituted in January, 1957. On March 4, 1958, plaintiffs’ attorneys learned through defendant’s attorney that the case had been marked off the calendar on October 2, 1957. Pursuant to rule 302 the complaint was dismissed on October 2, 1958.

The present motion is the result of the suggestion of Mr. Justice Ritchie who denied plaintiffs’ motion to restore the case to the calendar on May 21, 1959. The present notice of motion is dated July 14,1959.

*952The excuses offered for the default are weak at best but more than that there is no factual showing of a meritorious cause of action nor of a likelihood of success if the default were opened. (Manzi v. Central N. Y. Wire Corp., 15 Misc 2d 248 and eases therein cited.) Plaintiff’s affidavit contains nothing but conclusory statements which are insufficient to satisfy the requirement that facts be shown.

The delay here first in bringing the action and then in its prosecution cannot be said not to have prejudiced the defendant.

The motion is denied, without costs.