Benjamin v. Teixeira

Appellate Division of the Supreme Court of New York

Benjamin v. Teixeira

78 A.D.3d 434, 911 N.Y.S.2d 36

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 2010

StatusPublished

Cited by1 cases

This text of 78 A.D.3d 434 (Benjamin v. Teixeira) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benjamin v. Teixeira, 78 A.D.3d 434, 911 N.Y.S.2d 36 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 29, 2009, which, in this action alleging medical malpractice, denied plaintiffs motion to restore her case to the trial calendar, and dismissed the complaint as abandoned, unanimously affirmed, without costs.

A party seeking to have a case restored to the trial calendar must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action and the absence of prejudice to the opposing party (see e.g. Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Here, plaintiff, who brought this motion more than one year after the action had been struck from the trial calendar, failed to make the requisite showing as she offered no excuse for the delay (see Almanzar v Rye Ridge Realty Co., 249 AD2d 128 [1998]). Plaintiffs conclusoiy claim of law office failure, made for the first time on appeal, is not supported by the record (cf. Kaufman, 36 AD3d at 483). Furthermore, the lack of any activity in the action between the time it was struck from the trial calendar and the current motion fails to show a lack of intent to abandon the action (see Okun v Tanners, 11 NY3d 762 [2008]). Concur — Gonzalez, P.J., Saxe, Nardelli, Richter and Román, JJ.

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Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 29, 2009, which, in this action alleging medical malpractice, denied plaintiffs motion to restore her case to the trial calendar, and dismissed the complaint as abandoned, unanimously affirmed, without costs.

A party seeking to have a case restored to the trial calendar must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action and the absence of prejudice to the opposing party (see e.g. Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Here, plaintiff, who brought this motion more than one year after the action had been struck from the trial calendar, failed to make the requisite showing as she offered no excuse for the delay (see Almanzar v Rye Ridge Realty Co., 249 AD2d 128 [1998]). Plaintiffs conclusoiy claim of law office failure, made for the first time on appeal, is not supported by the record (cf. Kaufman, 36 AD3d at 483). Furthermore, the lack of any activity in the action between the time it was struck from the trial calendar and the current motion fails to show a lack of intent to abandon the action (see Okun v Tanners, 11 NY3d 762 [2008]). Concur — Gonzalez, P.J., Saxe, Nardelli, Richter and Román, JJ.

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Bluebook (online)

78 A.D.3d 434, 911 N.Y.S.2d 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-teixeira-nyappdiv-2010.

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