Gold v. Bluvshtein

In a negligence action to recover damages for injury to person and property and for loss of services and medical expenses, arising out of an automobile collision, defendant appeals from an order of the Supreme Court, Rings County, entered June 23,1959, which, inter alia, granted plaintiffs’ motion: (a) to vacate a prior order, entered on their default, dismissing the complaint for lack of prosecution; and (b) to open their default. Order reversed, without costs, and motion denied. In our opinion, the Special Term improvidently exercised its discretion in vacating the prior order dismissing the complaint for plaintiffs’ failure to prosecute. The excuse that plaintiffs’ inactivity for 42 months after joinder of issue was due to inadvertence is insufficient to warrant vacatur of such prior order (Siegel v. City of New York, 16 A D 2d 679; Topp v. Casco Prods. Corp., 8 A D 2d 727; O’Rourke v. City of New York, 3 A D 2d 713; Mancino v. City of New York, 1 A D 2d 830; A. R. Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942). Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.