Buckley v. Astoria Federal Savings & Loan Ass'n

297 A.D.2d 696, 747 N.Y.2d 386, 747 N.Y.S.2d 386, 2002 N.Y. App. Div. LEXIS 8664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 2002
• Status: Published

Opinion

A plaintiff moving to restore an action to the trial calendar more than one year after it was stricken from the calendar, after it has been dismissed pursuant to CPLR 3404, must establish: (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 Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc., 289 AD2d 372; Basetti v Nour, 287 AD2d 126; McCarthy v Bagner, 271 AD2d 509). The movant must establish all four components of the test before a dismissal can be properly vacated (see Fico v Health Ins. Plan of Greater N.Y., 248 AD2d 432, 433). Here, the plaintiffs failed to establish every element. Accordingly, the Supreme Court erred in granting that branch of their motion which was, in effect, to restore the action to the trial calendar.

In light of our determination, it is unnecessary to reach the appellant’s remaining contention. Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.