Balducci v. Brookdale Hospital Medical Center

Appellate Division of the Supreme Court of New York

Balducci v. Brookdale Hospital Medical Center

265 A.D.2d 516, 696 N.Y.2d 875, 696 N.Y.S.2d 875, 1999 N.Y. App. Div. LEXIS 10813

Appellate Division of the Supreme Court of the State of New York·Decided October 25, 1999·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated June 2, 1999, as granted the plaintiff’s motion to vacate the automatic dismissal of the action entered pursuant to CPLR 3404.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is dismissed.

“A party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party” (Civello v Grossman, 192 AD2d 636; see, Rivers v Jamaica Water Supply Co., 250 AD2d 661). All of the above requirements must be satisfied before a case can be properly restored (see, Fico v Health Ins. Plan, 248 AD2d 432). The plaintiff failed to meet her burden. O’Brien, J. P., Sullivan, Goldstein and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated June 2, 1999, as granted the plaintiff’s motion to vacate the automatic dismissal of the action entered pursuant to CPLR 3404.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is dismissed.

“A party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party” (Civello v Grossman, 192 AD2d 636; see, Rivers v Jamaica Water Supply Co., 250 AD2d 661). All of the above requirements must be satisfied before a case can be properly restored (see, Fico v Health Ins. Plan, 248 AD2d 432). The plaintiff failed to meet her burden. O’Brien, J. P., Sullivan, Goldstein and Feuerstein, JJ., concur.

Balducci v. Brookdale Hospital Medical Center, 265 A.D.2d 516, 696 N.Y.2d 875, 696 N.Y.S.2d 875, 1999 N.Y. App. Div. LEXIS 10813 (N.Y. Ct. App. 1999).

Pincite

265 A.D.2d 516 (Balducci v. Brookdale Hospital Medical Center) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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