Opinion
December 15, 1986
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is reversed, in the exercise of discretion, with one bill of costs, the motion is denied, and the action is dismissed.
The genesis of the instant action is an automobile collision which occurred on November 6, 1973. Although the plaintiffs commenced this lawsuit in or about January 1974, due to protracted delays and their repeated failure to timely prosecute the lawsuit, in July 1982 the action was deemed abandoned and dismissed pursuant to CPLR 3404. Thereafter, the plaintiffs were given numerous opportunities, by various court orders, to remedy the default. The plaintiffs, nevertheless, persisted in this pattern of continuous and protracted delay. Indeed, the present record discloses that within the course of a period of over 11 years, the plaintiffs progressed no further than having their case marked "ON" and "OFF" several calendars.
A party bringing an action should not abandon his case, let judgment be taken against him, and then test the patience of the court by repeated motions to restore the action to the Trial Calendar. This is the type of activity which CPLR 3404 seeks to prevent, and is the type of activity in which the plaintiffs have engaged.
Where an adverse party will be prejudiced, and no justifiable excuse is presented for the extensive delay, the moving party is not entitled to a vacatur of the default, regardless of the meritorious nature of the case (see, Montalvo v. Nel Taxi Corp., 114 A.D.2d 494, appeal denied in part and dismissed in part 68 N.Y.2d 643). We find that Special Term abused its discretion in permitting the plaintiffs to revive this action, yet another time, in view of the extensive delay, the absence of an adequate explanation for the delay, and the prejudice which would inure to the defendants if forced to defend this action (see, Fluman v TSS Dept. Stores, 100 A.D.2d 838; Le Frois Foods Corp. v. Aetna Ins. Co., 74 A.D.2d 730, appeal dismissed 49 N.Y.2d 1043; Dunne v McGuirk, 62 A.D.2d 1080). Bracken, J.P., Niehoff, Eiber and Sullivan, JJ., concur.