Opinion
July 13, 1970
In two libel actions by one plaintiff against one defendant, plaintiff appeals from two orders of the Supreme Court, Kings County, as follows: (1) an order dated September 5, 1969 and made in Action No. 1, which denied plaintiff's motion to restore that case to the Ready Day Calendar; and (2) an order dated July 25, 1969 and made in Action No. 2, which granted defendant's motion (a) to dismiss the complaint in that case, on the ground that the action is barred by the Statute of Limitations (CPLR 3211, subd. [a], par. 5) and (b) to vacate the service of the summons in that case on the ground that in a libel action service made outside the State does not give the court jurisdiction (CPLR 302, subd. [a], par. 3). Order of July 25, 1969, affirmed, with $10 costs and disbursements to respondent. No opinion. Order of September 5, 1969, reversed, with $10 costs and disbursements to respondent, and plaintiff's motion to restore Action No. 1 to the Ready Day Calendar granted, all on the following conditions: Plaintiff shall pay to defendant the costs and disbursements hereinabove allowed on this appeal, plus $150 for the extra expense and work to which defendant and her attorney have been put by reason of plaintiff's default, and also the taxable costs of the action for all proceedings prior to trial (CPLR 8201, subds. 1, 2); and plaintiff shall present to the Clerk of the trial court proof of payment of these items before restoring the action to the Ready Day Calendar. Plaintiff's default in appearing for trial in Action No. 1 was excusable and he appears to have a meritorious cause of action. Defendant is entitled to be reimbursed, however, to the extent of $150, for the extra expense and work to which she and her attorney have been put by reason of plaintiff's default. Payment of this sum should be made before the judgment is vacated and the action restored for trial (see Solomon v. Terlizzi, 15 A.D.2d 802). The plaintiff should also pay all taxable costs of the action for all proceedings prior to trial (CPLR 8201, subds. 1, 2) and the costs and disbursements allowed to defendant on this appeal. Rabin, Acting P.J., Hopkins, Latham, Kleinfeld and Brennan, JJ., concur.