Christopher v. Dea

45 A.D.2d 981, 359 N.Y.S.2d 131, 1974 N.Y. App. Div. LEXIS 4137

Opinion

Order unanimously reversed, without costs, and complaint dismissed. Memorandum: This cause of action seeks damages for personal injuries sustained in an automobile accident in 1965. The case has been placed on the City Court general docket twice, most recently on October 15, 1969, because the parties were not prepared to proceed to trial. After being placed on the general docket in 1969, the court granted a motion to dismiss the complaint on October 21, 1970. The motion to vacate the dismissal and restore the ease to the Trial Calendar was not made by plaintiffs until September of 1971, almost two years later, although they received a notice of a motion to restore a companion ease in September, 1970. Plaintiffs’ moving papers demonstrate no activity by them after the ease was docketed for the second time in 1969 and no excuse for the delay in moving to vacate their default (CPLR 5015, subd. [a]; Uniform City Court Rules for Fourth Judicial Department, 22 NYCRR 3400.4; Marco v. Sachs, 10 N Y 2d 542). Under these circumstances it was an improvident exercise of the court’s discretion to. vacate the dismissal and restore the action to the Trial Calendar. (Appeal from order of Erie County Court affirming order of City Court of Buffalo vacating default judgment.) Present — Marsh, P. J., Moule, Simons, Mahoney and Del Vecchio, JJ.