Opinion
October 29, 1970
Appeal from the Erie Supreme Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.
Order unanimously reversed, without costs and motion denied. 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 was submitted by either plaintiff — only a conclusory statement of an attorney, who by his own admission was not handling the matter. (Cf. De Lisio v. Muto, 30 A.D.2d 633.)