Opinion
February 20, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Cardamone, Simons, Mahoney and Goldman, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: On October 11, 1972 this case was sent to the general docket for lack of a statement of readiness. Pursuant to CPLR 3404 a certificate of abandonment was secured on November 12, 1973 and the motion now under consideration is dated November 19, 1974. It is readily apparent from this chronology that over two years elapsed between the time the case was sent to the general docket and the time that the present motion was made. The moving papers which attempt to excuse the long delay due to the fault of counsel or his employee, are not sufficient, nor does the fact that an offer of settlement had been made and subsequently withdrawn work to the benefit of the respondent in view of the circumstances. It is well settled that negotiations for settlement do not provide an excuse for delay beyond a brief interval after the last communication (Sortino v Fisher, 20 A.D.2d 25; see, also, Alaimo v D F Transit., 35 A.D.2d 776). It is also a prerequisite to the restoration of a case to the trial calendar that a showing be made both of a valid excuse for default and a meritorious claim (Ad Press Ltd. v Environmental Enterprises, 41 A.D.2d 636; Pell v Button, 44 A.D.2d 549). Neither of these requirements has been met in the moving papers.