Rodriguez v. Hercules Chemical Co.

Plaintiff attributes the delay to law office failure, which is rarely an acceptable excuse for a failure to seek more expeditiously to vacate a CPLR 3404 dismissal (Robinson v New York Tr. Auth., 203 AD2d 351; see, Hoenig v Stetefeldt, 127 AD2d 632), and is not an acceptable excuse here. Plaintiff’s attorney claims that the outside counsel who covered his appearance at the June 1992 pretrial conference never effectively communicated to him that the case was at that time marked off the calendar pending receipt of the Special Referee’s report on the Statute of Limitations issue, but instead of taking some affirmative action to find out what was happening with the case, he passively awaited notification of a trial date from the court or his calendar service. The only activity subsequent to the marking off was the Special Referee’s report of December 1992, the parties’ immediate motions to confirm and reject it, and the August 1993 order confirming the report and dismissing the affected cause of action. Also in August 1993, the case was dismissed pursuant to CPLR 3404. It was not until October 1994, more than two years after the case had been marked off, and more than a year after it had been dismissed, that the 320 instant motion was made. Under the circumstances, the activity relating to the Special Referee’s report was not such as to indicate the absence of an intent to abandon the case (cf., Syndicate Bldg. Corp. v Lorber, 193 AD2d 506; CCS Communication Control v Patent, 193 AD2d 435). We would also add that plaintiff has failed to demonstrate a meritorious cause of action and the absence of prejudice to defendants (see, Todd Co. v Birnbaum, 182 AD2d 505). Concur—Murphy, P. J., Milonas, Wallach, Ross and Nardelli, JJ.