Borrelli v. Maye

Appellate Division of the Supreme Court of New York

Borrelli v. Maye

293 A.D.2d 506, 739 N.Y.S.2d 826, 2002 N.Y. App. Div. LEXIS 3515

Appellate Division of the Supreme Court of the State of New York·Decided April 8, 2002·Published·Cited by 3 cases

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 1, 2001, which denied his motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v Nour, 287 AD2d 126; McCarthy v Bagner, 271 AD2d 509). The plaintiff failed to establish all of these elements. Accordingly, the Supreme Court providently exercised its discretion in denying his motion. Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 1, 2001, which denied his motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v Nour, 287 AD2d 126; McCarthy v Bagner, 271 AD2d 509). The plaintiff failed to establish all of these elements. Accordingly, the Supreme Court providently exercised its discretion in denying his motion. Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

Borrelli v. Maye, 293 A.D.2d 506, 739 N.Y.S.2d 826, 2002 N.Y. App. Div. LEXIS 3515 (N.Y. Ct. App. 2002).

Pincite

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