Opinion
October 31, 1977
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Queens County, dated April 14, 1977, which denied their motion to vacate the dismissal of the action and to restore the case to the calendar. Order affirmed, with $50 costs and disbursements. While we firmly believe that every litigant should have his day in court (see Williams v Giattini, 49 A.D.2d 337), the length of the delay in this case is extraordinary. The accident out of which the case arises occurred in 1969, a statement of readiness and note of issue were filed in 1973, the action was struck from the calendar in February, 1974, and it was automatically dismissed in February, 1975 pursuant to CPLR 3404. Claiming that they did not become aware of the fact that the case had been dismissed until December, 1976, plaintiffs' attorneys thereupon moved to vacate the dismissal and to restore the case to the calendar. The circumstances alleged by the plaintiffs and their attorneys do not warrant the granting of said motion (see Ruggiero v Elbin Realty, 51 A.D.2d 1011). Hopkins, J.P., Cohalan, Margett and Hawkins, JJ., concur.