Christopher v. Horton

Appellate Division of the Supreme Court of New York

Christopher v. Horton

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

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

DecidedNovember 7, 1984

StatusPublished

Cited by3 cases

This text of 105 A.D.2d 1119 (Christopher v. Horton) 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

Christopher v. Horton, 105 A.D.2d 1119, 482 N.Y.S.2d 615, 1984 N.Y. App. Div. LEXIS 21215 (N.Y. Ct. App. 1984).

Pincite

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, [1120]*1120Chautauqua County, Ricotta, J. — restore to calendar.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

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, [1120]*1120Chautauqua County, Ricotta, J. — restore to calendar.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

105 A.D.2d 1119, 482 N.Y.S.2d 615, 1984 N.Y. App. Div. LEXIS 21215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-v-horton-nyappdiv-1984.

Opinion

Related

Cite This Page — Counsel Stack