Opinion
April 13, 1978
Appeal from an order of the Supreme Court at Special Term, entered August 24, 1973 in Rensselaer County, which granted a motion by plaintiff to restore the action to the Trial Calendar and denied defendants' motion to confirm the dismissal of the action. This action was commenced by the service of a summons and complaint, verified November 6, 1959. In 1968, defendants moved to dismiss the amended complaint and in 1969 the motion was denied. The action was placed on the Deferred Calendar in September, 1971. In September, 1972, the action was struck from the calendar pursuant to CPLR 3404 and rule 861.16 of the Appellate Division, Third Department (22 NYCRR 861.16). By a notice of motion dated May 3, 1973, plaintiff moved to open her default and have the action restored to the calendar. The motion was granted while defendants' motion to confirm dismissal of the action was denied. This appeal ensued. In seeking to open the default and restore the action to the Trial Calendar, plaintiff was required to show that her action was meritorious, excusable neglect for her default, and lack of prejudice to the defendants (Hickey v Shumacher, 54 A.D.2d 790). Plaintiff's attorney, in support of the motion, stated in an affidavit that in April, 1972 he and defendants' attorney discussed settlement and that thereafter he was requested by defendants' attorney to "hold off". Such a request is denied by defendants' attorney in his affidavit. No date is given as to when the request to "hold off" was made, how it was made, nor for how long a period of time the request was made. In our view, the settlement negotiations are in themselves an insufficient excuse (see McNamara v Hutchinson, 33 A.D.2d 26). It is the opinion of this court, upon review of the entire record, that plaintiff has failed to show excusable neglect for her default and, therefore, the order must be reversed. Order reversed, on the law and the facts, plaintiff's motion to restore the action to the Trial Calendar denied, and defendants' motion to confirm dismissal of the action granted, without costs. Greenblott, J.P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.