Mangum v. Marson Construction Corp.

In an action to recover damages for personal injuries, plaintiff appeals from (1) an order of the Supreme Court, Queens County, dated April 23, 1976, which denied his motion, inter alia, to vacate the automatic dismissal of his action and to restore it to the Trial Calendar, and (2) a judgment of the same court, entered May 17, 1976, which dismissed the action on the basis of his default. Appeal from the judgment dismissed. No appeal lies from a judgment entered upon default. Order affirmed. One bill of $50 costs and disbursements to cover both appeals is awarded to respondents appearing separately and filing separate briefs. There had been a delay of nearly three years between the time the *588case was marked off the calendar for failure to file a statement of readiness and the day this motion was made. The alleged excuses merely demonstrate that the delay was attributable to neglect by plaintiff or his attorney. Plaintiff has not submitted a sufficient affidavit of merit to warrant restoration of the case to the Trial Calendar (see Keating v Smith, 20 AD2d 141; Sortino v Fisher, 20 AD2d 25). Cohalan, Acting P. J., Hawkins, Suozzi and Mollen, JJ., concur.