Opinion
October 6, 1980
In a negligence action to recover damages for wrongful death and conscious pain and suffering, defendants appeal from an order of the Supreme Court, Orange County, dated December 7, 1979, which granted plaintiff's motion to vacate the dismissal of this action pursuant to CPLR 3404 and to restore the action to the Trial Calendar. Order reversed, on the law, with one bill of $50 costs and disbursements payable jointly to defendants appearing separately and filing separate briefs, and plaintiff's motion is denied. It was an improvident exercise of discretion to vacate the automatic dismissal which had been entered pursuant to CPLR 3404. Plaintiff failed to make the requisite showing of facts sufficient to excuse her delay in prosecution. After the case was marked "off" the calendar on February 27, 1978, due to the nonappearance of plaintiff's counsel, no activity can be shown in this action. Counsel's unfamiliarity with court rules is law office failure which is not a reasonable excuse for delay (see McIntire Assoc. v. Glens Falls Ins. Co., 41 A.D.2d 692). The interval of 21 months between the default and the instant motion is sufficient to require denial of the motion since no legitimate excuse for the neglect exists. Damiani, J.P., Lazer, Mangano and Cohalan, JJ., concur.