Cobos v. Phieffer

Appellate Division of the Supreme Court of New York

Cobos v. Phieffer

8 A.D.3d 424, 778 N.Y.S.2d 318, 2004 N.Y. App. Div. LEXIS 8423

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 2004·Published·Cited by 4 cases

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Huttner, J.), dated September 4, 2003, which denied their motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

“A party seeking to restore to the trial calendar an action which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party” (McCarthy v Bagner, 271 AD2d 509 [2000]). The plaintiffs did not demonstrate a reasonable excuse for their failure to appear at a trial conference on June 24, 2002, and thus failed to satisfy the standard. Accordingly, the Supreme Court properly exercised its discretion in denying the motion to restore. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Huttner, J.), dated September 4, 2003, which denied their motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

“A party seeking to restore to the trial calendar an action which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party” (McCarthy v Bagner, 271 AD2d 509 [2000]). The plaintiffs did not demonstrate a reasonable excuse for their failure to appear at a trial conference on June 24, 2002, and thus failed to satisfy the standard. Accordingly, the Supreme Court properly exercised its discretion in denying the motion to restore. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.

Cobos v. Phieffer, 8 A.D.3d 424, 778 N.Y.S.2d 318, 2004 N.Y. App. Div. LEXIS 8423 (N.Y. Ct. App. 2004).

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8 A.D.3d 424 (Cobos v. Phieffer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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