Tepperman v. Peri

¶1In a negligence action to recover damages for personal and property injuries which was automatically dismissed pursuant to statute and the rules of this court (CPLR 3404; Appellate Division Rules, Second Dept., part 7, rule VIII) for failure to answer a calendar call, defendant appeals from so much of an order of the Supreme Court, Kings County, dated September 22,1967, as granted plaintiff’s motion insofar as it was to set aside his default, vacate the dismissal of the action and restore the action to the trial calendar. Order reversed insofar as appealed from, without costs, and motion denied insofar as it was to set aside plaintiff’s default, vacate the dismissal of the action and restore the action to the trial calendar. The instant motion was made some 22 months after the case was dismissed for failure to answer the calendar call. Plaintiff’s attorney attributes the delay to his “ inadvertence ” in that he “ overlooked ” the calendar call. Such excuse, characterized as “Law Office Failures” (Sortino v. Fisher, 20 A D 2d 25, 29), has been rejected in a number of eases (e.g., Marzian v. D’Oench, 28 A D 2d 723; Evans v. Kompinski, 28 A D 2d 635). In our opinion, plaintiff failed to make the requisite showing of facts sufficient to excuse his failure to prosecute the action. Beldock, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.