Bray v. Thor Steel & Welding Ltd.

275 A.D.2d 912, 713 N.Y.S.2d 400, 2000 N.Y. App. Div. LEXIS 9671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs motion to vacate the dismissal of the action pursuant to CPLR 3404. To prevail on the motion, plaintiff was required to demonstrate a meritorious cause of action, a reasonable excuse for his delay, his lack of intent to abandon the action and the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Tate v Peninsula Hosp. Ctr., 255 AD2d 503, 503-504; Krantz v Scholtz, 201 AD2d 784, 785, lv dismissed 83 NY2d 902; Knight v City of New York, 193 AD2d 720, 721, lv dismissed 83 NY2d 800). All four elements must be established for the order of dismissal to be vacated (see, Knight v City of New York, supra, at 721; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611), and plaintiff failed to establish three of them. The unsubstantiated assertions in the affirmation of plaintiff’s attorney are insufficient to demonstrate either a meritorious cause of action (see, Maida v Rite Aid Corp., 210 AD2d 589, 590-591; Matter of Kharrubi v Board of Educ., 133 AD2d 457, 458) or the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Robinson v New York City Tr. Auth., 203 AD2d 351). Further, the intermittent periods of disability claimed by plaintiffs attorney do not constitute a reasonable excuse for the delay because there is “no showing that [the] disability was continuous throughout the * * * period in question” (Knight v City of New York, supra, at 722; see, Chery v Anthony, 156 AD2d 414, 416-417). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.— Vacate Dismissal.) Present — Green, J. P., Pine, Hurlbutt and Kehoe, JJ.