Christopher v. Horton

105 A.D.2d 1119, 482 N.Y.S.2d 615, 1984 N.Y. App. Div. LEXIS 21215

Opinion

Order unanimously reversed, with costs, and motion denied. Memorandum: Defendants appeal from an order granting plaintiff’s motion to restore this negligence action to the Trial Calendar. We reverse. To vacate a CPLR 3404 order of dismissal, plaintiff must rebut the presumption of abandonment and demonstrate excusable neglect, a meritorious claim and lack of prejudice to defendants (see O’Dell v Stornelli, 98 AD2d 957). Generally; in order to rebut the presumption of abandonment, plaintiff must show some activity within the one-year period after the case is placed on the general docket (see Marco v Sachs, 10 NY2d 542). Here, there was no activity in this or the companion action during this period. Moreover, plaintiff has shown no excuse for his inordinate delay in prosecuting the action. Additionally, the affidavit of plaintiff’s attorney, who lacked personal knowledge of the facts, is insufficient to establish a meritorious cause of action (see Lifset v Ehrlich, 61 AD2d 1063). (Appeal from order of Supreme Court, Chautauqua County, Ricotta, J. — restore to calendar.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.