Opinion
February 13, 1962
In a consolidated action by plaintiff against defendant, a physician, to recover damages for malpractice and fraud, and by defendant against plaintiff to recover for professional services rendered, the plaintiff appeals from an order of the Supreme Court, Queens County, entered October 28, 1960, which denied her motion to vacate the dismissal of the action and to restore it to the Ready Day Trial Calendar. Order affirmed, without costs. Defendant brought an action against plaintiff in the Municipal Court of the City of New York to recover for professional services rendered. Plaintiff thereafter instituted an action against defendant in the Supreme Court, Queens County, to recover damages for malpractice and fraud. On plaintiff's motion, the court by order dated January 8, 1952 consolidated the Municipal Court action with the Supreme Court action. On March 16, 1959, the (consolidated) action was marked off the calendar for the second time. On April 7, 1959, plaintiff's present attorney was substituted for her former attorneys. By a notice of motion dated November 16, 1959, plaintiff moved to restore the action to the calendar. On January 16, 1960, a handwritten indorsement was made on the motion papers, in lieu of a formal order, that the motion was withdrawn and that counsel was to restore the case by stipulation or five days' notice. On March 16, 1960, the action was dismissed pursuant to subdivision 2 of rule 302 of the Rules of Civil Practice (see, also, Queens County Supreme Court Rules, rule 2, subd. [e]). Thereafter, by a notice of motion dated September 15, 1960, plaintiff moved to vacate such dismissal and to restore the action to the calendar. It is from the order denying such motion that plaintiff now appeals. In our opinion, under the circumstances here, the Special Term properly exercised its discretion in denying the motion ( Walsh v. Riley's Arrowhead Inn, 2 A.D.2d 714; Curro v. Marino, 14 A.D.2d 526). Upon the argument of the appeal and in her reply brief, plaintiff has presented a contention not urged previously. She now contends that she had the entire day of March 16, 1960 in which to move to restore the action; that no proper dismissal could be made before March 17, 1960; and that the dismissal on March 16, 1960 is, therefore, jurisdictionally void. The action was marked off the calendar on March 16, 1959. Subdivision 2 of rule 302 of the Rules of Civil Practice provides that when a case is marked off the calendar and not restored "within one year thereafter," it "shall be deemed abandoned, and the complaint and counterclaim, if any, shall be dismissed, without costs for failure to prosecute, and the clerk shall make appropriate entry to that effect pursuant to this rule without necessity of further order." Similar provisions are contained in subdivision (e) of rule 2 of the Queens County Supreme Court Rules. In our opinion, prior to March 17, 1960, any dismissal of the action pursuant to those rules was improper (General Construction Law, § 20; Yates v. Guthrie, 119 N.Y. 420; Sugerman v. Jacobs, 160 App. Div. 411; Wheelock v. Wheelock, 3 A.D.2d 25, 26, affd. 4 N.Y.2d 706; Goon v. Fu Manchu's Restaurant, 253 App. Div. 531, 535). But the rules are automatic and self-executing. If the Clerk fails to make an entry as to the dismissal, the action is nevertheless considered dismissed as of the proper date ( Balaka v. Stork Restaurant, 3 A.D.2d 857; Walsh v. Riley's Arrowhead Inn, supra; Marco v. Sachs, 25 Misc.2d 763, affd. 12 A.D.2d 774, reversed on other grounds, 10 N.Y.2d 542; Wheelock v. Wheelock, supra). Since the Clerk's entry as to a dismissal pursuant to those rules is merely a ministerial act, and since a dismissal becomes effective as of the proper date even if no entry be made by the Clerk, the error here as to the date of the dismissal will be disregarded (Civ. Prac. Act, § 105). Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.