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• Title: Calogero Alaimo Et Al. v. D & F Transit
• Author : Supreme Court of New York
• Release Date : January 29, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

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[35 A.D.2d 776 Page 776] Memorandum: Defendants appeal from an order opening plaintiffs' default, vacating an automatic dismissal of the action (CPLR
3404) and restoring it to the Trial Calendar. We conclude that Special Term improvidently exercised the discretion vested
in it. Plaintiffs were required to establish that there was merit to their action and that there was a reasonable excuse for
their long continued inactivity and delay (Levine v. Levy, 29 A.D.2d 827). The action was commenced in September, 1966. In
October of the same year a note of issue was filed without a statement of readiness. A year later (Oct. 25, 1967) the case
was stricken from the calendar and placed on the General Docket by reason of plaintiffs' failure to file the statement of
readiness. It was not until December, 1969 that plaintiffs moved to obtain the relief granted by the order under review. In
sum, the period of plaintiffs' inaction covers the period from October, 1966 (note of issue filed) to December, 1969 (motion
to open default). The sole excuse proffered by plaintiff is that one of their attorneys had been ill. But this illness did
not commence until July, 1968 and uncontroverted is defendants' assertion that the firm of attorneys representing plaintiffs
is one of the most active litigation firms in Erie County. Moreover, as stated, the delay was more than three years and the
lawyer's illness was only some 10 months of that time which, it has been written, constitutes "no excuse at all" (Valentin
v. Ina Holding Corp., 20 A.D.2d 525). Lastly, no affidavit of merit [35 A.D.2d 776 Page 777]

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