Advanced Ortho-Technology, Inc. v. Orthospec, Inc.

203 A.D.2d 218, 612 N.Y.S.2d 886, 1994 N.Y. App. Div. LEXIS 3178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1994
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered July 10, 1992, which conditionally granted the plaintiff’s motion to vacate the dismissal of the complaint pursuant to CPLR 3404.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion is denied.

In order to vacate a dismissal of a complaint pursuant to CPLR 3404, the plaintiff must show a reasonable excuse for the delay, lack of prejudice to the adversary, a meritorious cause of action, and lack of intention to abandon (see, Gray v Sandoz Pharms., 158 AD2d 583). The plaintiff failed to meet this burden.

The asserted illness of the plaintiff’s attorney was not a reasonable excuse because the attorney submitted no medical records to support his claim, and, in any event, there were associate counsel available (see, Prezio v Milanese, 40 AD2d 910). Nor did the plaintiff show a meritorious cause of action, because it did not submit an affidavit by a party with knowledge, and the affidavit of the plaintiff’s attorney was unacceptable hearsay (see, e.g., Matter of Kharrubi v Board of Educ., 133 AD2d 457). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.