Zahn v. Neverett , 75 A.D.2d 976 ( 1980 )

Appeal from an order of the Supreme Court at Special Term, entered November 15, 1979 in Clinton County, which denied plaintiffs’ motion to restore their action to the Trial Calendar. This action was on the Standard and Goals Calendar of the Supreme Court, Clinton County, for the Trial Term commencing in January, 1978. Plaintiffs’ attorneys, maintaining an office in Monroe County, were so advised by the court early in December of 1977. The action was commenced on March 21, 1975 and, pursuant to a demand (CPLR 3216), a note of issue was served and filed in May, 1977. Defendant has stated he was ready to defend the action at each and every Trial Term thereafter, including the term commencing on January 3, 1978. The court advised plaintiffs’ trial counsel to keep in daily contact since the matter would have to be disposed of when reached. Twice thereafter counsel was informed of the rapid progress of this case to the top of the Day Calendar. He was further notified on January 17, 1978 that the matter would be ready for trial at 9:30 a.m. on January 18, 1978. When there was no appearance by or on behalf of plaintiff on that date, defendant’s motion to dismiss the complaint was granted. The instant motion to have the action restored to the Calendar was made in January of 1979. In our view the trial court was correct both in dismissing the complaint and in denying the motion to restore. The conduct of plaintiffs’ attorney was sufficient to support the exercise of its discretion in granting the motion to dismiss, and the subsequent application to restore failed to set forth a sufficient excuse for the past delay or to present an adequate affidavit of merits (cf. Hickey v Shumacher, 54 AD2d 790; Adriance v County of Rensselaer, 52 AD2d 1002). Order affirmed, with costs. Mahoney, P. J., Greenblott, Sweeney, Kane and Casey, JJ., concur.