Kochon v. County of Oneida

—Order unanimously reversed, without costs, and motion denied. Memorandum: In this long-delayed cause it was an improvident exercise of discretion to vacate the automatic dismissal which had been entered pursuant to CPLR 3404. Plaintiffs’ burden on such a motion is to show "the same kind of proof of merit, lack of prejudice to the opposing party and excusable neglect as must be shown to open a default judgment” (Mclntire Assoc, v Glens Falls Ins. Co., 41 AD2d 692, 693; Sesan v American Home Prods. Corp., 52 AD2d 1058). This suit was commenced by service of a bare summons in 1969. In 1973, although noting our disapproval of plaintiffs’ inaction, we held that plaintiffs’ delay of three years in serving a complaint was justifiable under the circumstances (Kochon v County of Oneida, 41 AD2d 697). Subsequently, however, in the prosecution of this claim there have been several additional delays which have not been satisfactorily explained by the plaintiffs. The case was ordered to be tried on four separate occasions and each time plaintiffs’ counsel announced that he was not ready for trial. On the last of such appearances on September 3, 1975, plaintiffs’ counsel informed the court that his expert witness had died. The case was adjourned to October 6, 1975 at which time plaintiffs did not appear and the case was placed on the general docket. On October 6, 1976 it was automatically dismissed (CPLR 3404). This motion to vacate the dismissal and restore the case to the calendar was not made until 16 months later and under all the circumstances the plaintiffs have not met their burden of showing excusable neglect (cf. Sortino v Fisher, 20 AD2d 25). (Appeal from order of Oneida Supreme Court—restore to calendar.) Present —Marsh, P. J., Dillon, Hancock, Jr. Schnepp and Witmer, JJ.