| Molloy v D'Angelillo |
| 2006 NY Slip Op 50064(U) [10 Misc 3d 141(A)] |
| Decided on January 20, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered June 27, 2005, which denied her motion to dismiss and granted plaintiffs' motion to restore the action to the trial calendar.
PER CURIAM:
Order (Fernando Tapia, J.), entered June 27, 2005, reversed, with $10 costs, and defendant's motion to dismiss is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
This eleven year old personal injury action should not have been restored to the trial calendar, where it had previously been marked final twice and stricken from the calendar three times due to plaintiff's inability to go forward.
Plaintiff's counsel's carefully worded affirmation of engagement, alleging only that he "will be" engaged elsewhere, was insufficient to make the requisite showing of "exceptional circumstances" to avoid the mandatory dismissal provisions of the governing court rule (see 22 NYCRR 208.14[d]; Centennial Restorations Co. v. Wyatt, 248 AD2d 193 [1998]).
This constitutes the decision and order of the court.
Decision Date: January 20, 2006