Opinion
November 5, 1970
Appeal from the Oneida Special Term.
Present — Goldman, P.J., Marsh, Moule, Bastow and Henry, JJ.
Order reversed and motion granted in accordance with the following memorandum: Appellant's actions were stricken from the Trial Calendar and placed on the general docket on January 20, 1969. Section 1085.8 of the Supreme Court Rules — Oneida and Onondaga County (then in effect, subsequently repealed July 1, 1970 [22 NYCRR 1085.8]) provided that a case stricken from the Trial Calendar may be restored thereto on motion made within one year of the date of its removal upon showing good cause for restoring it and further showing it to be qualified for placement on the Trial Calendar by filing a note of issue and statement of readiness (§ 1085.2). Appellant moved to restore the cases on December 11, 1969 (within the one-year period). Affidavits in support of the motion allege that the actions were brought to recover damages for injuries sustained by plaintiff on December 31, 1965; when the actions were reached for trial on Monday, January 20, 1969, plaintiff's attorney learned, and informed the Trial Judge, that the physician who had treated plaintiff for the injuries was attending a medical convention and would not return to Utica and be available to testify until the following Thursday. The cases were thereupon placed on the general docket. It is further alleged that plaintiff is able to attend court and his attorney is prepared to proceed with the trial of the actions as soon as they are reached for trial. Plaintiff's deposition taken in an examination before trial, which shows that he has meritorious causes of action, was submitted to Special Term on the motion. Affidavits of attorneys for the respective defendants do not dispute plaintiff's allegations but state that plaintiff failed to present a sufficient affidavit of merits. The motion not being one to open a default, such an affidavit is not specifically required. Section 1085.8, then in effect, did however require a showing of good cause for restoring the cases to the Trial Calendar. The facts shown in plaintiff's deposition and his attorney's affidavits are sufficient to entitle him to restoration of his cases to the Trial Calendar. Appellant is entitled to an order of restoration in accordance with subdivision (c) of 1024.13 of the Uniform Calendar and Practice Rules for the Fourth Department which became effective on July 1, 1970. (22 NYCRR 1024.13.) All concur, Bastow, J., not participating.