Barry v. Oneonta Oil & Fuel Co. , 74 A.D.2d 954 ( 1980 )

Appeal from an order of the Supreme Court at Special Term, entered August 10, 1979 in Otsego County, denying the plaintiffs motion to vacate a default judgment and to restore the action to the Trial Calendar. The action was commenced on January 7, 1975 and issue joined on November 16, 1978. The complaint sought to recover moneys due and owing the plaintiff for work, labor and services. The defendant counterclaimed for negligence in the performance of the work and for breach of contract. The action appeared on the Supreme Court Trial Term Calendar for Otsego County for the March, 1979 term called on February 26, 1979. At calendar call the case was marked "ready”, but it does not appear who marked it. In any event, the plaintiffs attorney made no effort to follow the calendar status of the case. On March 8, 1979, the court clerk advised the plaintiffs attorney’s office that the case was being noticed for trial on March 12, 1979. The plaintiffs attorney admits such a call was received by his office. On that date there was no appearance on the part of the plaintiff, and the defendant moved for and obtained a default judgment dismissing the complaint and granting judgment on the counterclaim. The plaintiff moved to open the default and this motion was denied by the trial court in a decision dated July 23, 1979. The plaintiffs attorney has failed to show adequate excuse for his failure to appear for trial when notified. His affirmation claims he was involved in Environmental Conservation hearings, but he failed to notify the trial court of that fact or to file an affidavit of engagement prior to the trial date set herein. Viewed in its most favorable light, the plaintiff’s affidavit evidences complete indifference to a calendar case that was four years old. The trial court properly denied the plaintiffs motion to open the default. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:5, p 864). Order affirmed, with costs. Mahoney, P. J., Sweeney, Staley, Jr., Casey and Herlihy, JJ., concur.