Opinion
April 1, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Marsh, Witmer, Gabrielli and Cardamone, JJ.
Order unanimously reversed, without costs and motion denied. Memorandum: On September 20, 1966, nearly three years after an automobile accident occurred in which it is claimed one of the plaintiffs was injured, this action was begun by service of a summons only. In November, 1966 defendant moved to dismiss the action for failure of plaintiffs to prosecute it by service of a complaint. Plaintiffs failed to appear on the return of the motion, and on November 23, 1966 an order was entered granting the motion unless within 10 days from the service thereof plaintiffs should serve a complaint upon defendant's attorney. Thereafter plaintiffs secured several extensions of time to serve such complaint, the last being to March 1, 1967. In May, 1968 inquiry of defendant's attorney was made in behalf of plaintiffs concerning the status of the case, and defendant replied that he considered the case terminated and would stand on that position unless plaintiffs could get a court order to the contrary. Plaintiffs did nothing thereafter until December, 1969 when they moved to vacate the dismissal order of November 23, 1966; and it is from the order granting that motion that defendant appeals. The granting of the motion to vacate was an improvident exercise of Special Term's discretion. Although plaintiffs' motion papers show that their attorney was ill during a large part of the above interim period, the affidavits are indefinite as to dates and show that he was not disabled throughout the entire period and that he was clearly able at least to arrange to have another attorney assist in the case or take it over completely. Moreover, more than seven years have passed since the accident, and no showing has been made of the nature of the accident or the alleged injuries nor whether there is any merit in the action. As we have repeatedly held, such showing is a prerequisite to relief of this sort ( Alaimo v. D F Transit, 35 A.D.2d 776; Huether v. Blad, 35 A.D.2d 774; Owczarkowski v. Pawlicki, 35 A.D.2d 773; Sortino v. Fisher, 20 A.D.2d 25, 31-32). The affidavit of the secretary of plaintiffs' attorney, who had obtained several extensions of the 10-day period provided in the dismissal order, that she "was under the impression that they [the extensions] were until Mr. Simon returned to the office", is too weak to overcome defendant's denial of such indefinite extension; and this is especially true since this was not urged at the time of the May, 1968 communications.