Adamson v. Silvestrelli (34 A.D.2d 633, 1970)

Order entered August 27, 1968 unanimously reversed on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion to open the plaintiff’s default and to vacate the judgment entered January 12, 1965 denied. Although a complaint was never served, it appears that plaintiff’s accident occurred on August 30,1959. After a service of the summons, the plaintiff did not enter a default judgment (CPLR 3215) and further failed to serve a complaint after demand. Thereafter he defaulted on the motion to dismiss his action pursuant to CPLR 3012 (subd. [b]). Although admitting receipt under date of January 12, 1965 of the default judgment of dismissal, plaintiff waited more than three years before taking action to vacate the judgment. No excuse was offered concerning this last delay nor was explanation given for the original default. {Lind v. Port of N. Y. Aufh., 28 A D 2d 984; Dooley v. Flavel, 28 A D 2d 1115.) Concur—Capozzoli, J. F., McGivern, Markewich and Tilzer, JJ.