Alcorn v. Tichenor

Order unanimously reversed, without costs, and motion denied. Memorandum: Special Term’s order vacating the order dismissing plaintiffs action for failure to serve a complaint and the judgment against plaintiff based thereon must be reversed as an improper exercise of discretion. The motion to reopen the judgment, pursuant to CPLR 5015 (subd [a], par 1), was instituted more than one year after the effective date of the order of dismissal, obtained pursuant to CPLR 3216. Although apparently the plaintiff was unaware that his original attorney had been totally neglecting the lawsuit, there are no mitigating circumstances or facts set forth in the record explaining the failure of that attorney to file a complaint despite defendant’s repeated requests therefor, or his failure to appear in opposition to defendant’s motion to dismiss. Clearly, such unexplained law office failure can constitute no basis for reopening the default (see Kahn v Stamp, 52 AD2d 748; McIntyre Assoc. v Glens Falls Ins. Co., 41 AD2d 692; Sortino v Fisher, 20 AD2d 25). (Appeal from order of Cayuga Supreme Court—vacate dismissal of action.) Present—Marsh, P. J., Dillon, Hancock, Denman and Witmer, JJ.