Opinion
February 23, 1973
Appeal from the Erie Special Term.
Present — Goldman, P.J., Witmer, Moule, Cardamone and Simons, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: It was an improvident exercise of discretion for Special Term to restore the action to the Supreme Court Calendar of Erie County. It had been placed on the General Docket on March 6, 1969 and because no application to restore it was made, it was deemed abandoned and automatically dismissed on March 7, 1970 pursuant to CPLR 3404 (see, also, 22 NYCRR 1024.13). For nearly two years following a demand for a bill of particulars served on plaintiff's attorneys on January 10, 1970 there was no action taken until December 7, 1971 when plaintiff's attorneys caused a bill of particulars to be served on defendant's attorneys. Defendant's attorneys refused to accept it because of the automatic dismissal of the action which had occurred 21 months previously. Its motion to vacate the default and restore the action to the calendar was supported solely by its attorney's affidavit claiming law office failure. The application was not accompanied by an affidavit of merits by a person having knowledge of the facts indicating a viable cause of action. Further, there was no showing of an absence of prejudice to defendant if the action were restored. Once an action has been deemed dismissed under CPLR 3404 a motion to open the default and restore the case to the calendar will require the same kind of proof of merit, lack of prejudice to the opposing party and excusable neglect as must be shown to open a default judgment. (See Marco v. Sachs, 10 N.Y.2d 542; CPLR 5015, subd. [a], par. 1; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 3404.05, 3404.06.) The application in this case fell far short of such proof. Delay in moving to reopen attributable to law office failure has been uniformly held to be an unacceptable excuse ( Trudel v. Laube's Amherst, 40 A.D.2d 625, 626; Tepperman v. Peri, 29 A.D.2d 893, app. dsmd. 22 N.Y.2d 703; Sortino v. Fisher, 20 A.D.2d 25, 29).