Kohn v. Sabra Trucking & Warehouse, Inc.

41 A.D.2d 521, 339 N.Y.S.2d 782, 1973 N.Y. App. Div. LEXIS 5295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1973
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on February 16, 1972, granting plaintiff’s motion to open her default and restoring the action to the calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion denied. The action was begun. July 6, 1966. Issue was joined and the case appeared on the calendar on September 26, 1969, and was struck off for failure to appear. In accord with CPLR 3404 it was dismissed on September 26, 1970. From then until January, 1972, when this motion was made, no steps were taken, No adequate excuse was offered for the original failure, nor for the delay in seeking to cure the default {Sortino V. Fisher, 20 A D 2d ■25; Evans v. Kompimshi, 28 A D 2d 635; Bosco V. Be Pitt’s Mountain Lodge, 28 A D 2d 717). The total period of inactivity was 27 months. Prejudice to the defendant is not a factor in the face of such extended delay {Cohan v. Wil-Sade Realties, 19 A D 2d 605). Concur — Kupferman, J. P., Murphy, Lane and Steuer, JJ.