Opinion
May 6, 1968
In a negligence action to recover damages for personal injury which was automatically dismissed pursuant to CPLR 3404, plaintiff appeals from an order of the Supreme Court, Kings County, dated March 16, 1967, which denied her motion to vacate the dismissal of the action, restore the action to the Trial Calendar and transfer the action to the Civil Court of the City of New York. Order affirmed, with $10 costs and disbursements to each respondent. In our opinion, the excuse proffered (that plaintiff's attorneys were under the impression that a calendar answering service was following the case and would notify them of calendar calls as they arose) falls within the category of "Law Office Failures" characterized in Sortino v. Fisher ( 20 A.D.2d 25, 29). Such excuses have been rejected by this court ( Tepperman v. Peri, 29 A.D.2d 893, and cases there cited). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.