Opinion
May 11, 1961
Order entered on or about June 20, 1960, granting plaintiffs' second motion for a renewal of an application to vacate a dismissal of the action on January 3, 1958, pursuant to rule 302 of the Rules of Civil Practice and to restore the case to the calendar, unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion denied, with $10 costs. Although no motion was made to open the default before moving to restore the case to the calendar ( Mintzer v. Loeb, Rhoades Co., 10 A.D.2d 27, 29) we have disregarded this technical defect and considered the motion on the merits under the general prayer of the notice of motion for other and further relief (see Radar-Electronics v. Oscar Leventhal, Inc., 8 A.D.2d 778). It has been held by this court that the same consequences flow from a failure to restore a case which has been dismissed under rule 302 as upon failure diligently to prosecute an action ( Malekian v. McLean Trucking Co., 10 A.D.2d 825). The suit involves an accident which occurred in November, 1952. Although Special Term found that the case had been mishandled and considered that to grant the motion would be "an improvident exercise of discretion", the motion to vacate the dismissal was nevertheless granted on the general ground of the interests of justice. In view of the failure adequately to explain the inordinate delays in prosecuting the litigation, the second application to renew the motion to open the default, vacate the dismissal and restore the case to the calendar should have been denied.
Concur — Breitel, J.P., Rabin, Valente, McNally and Bastow, JJ.