Day v. Maimonides Medical Center

266 A.D.2d 338, 698 N.Y.S.2d 150, 1999 N.Y. App. Div. LEXIS 11558

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Alan M. Crystal appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated February 3, 1999, as granted that branch of the plaintiffs’ motion which was to vacate the dismissal of the action pursuant to CPLR 3404.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was to vacate the dismissal of the action pursuant to CPLR 3404 is denied.

“It is well settled that in order to vacate a dismissal pursuant to CPLR 3404, the plaintiff must establish the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party if the case is restored to the calendar” (Iazzetta v Vicenzi, 243 AD2d 540; see, Robinson v New York City Tr. Auth., 203 AD2d 351; Hatcher v Cassanova, 180 AD2d 664). A plaintiff must satisfy all four requirements. In the instant case, the plaintiffs failed to satisfy any of these requirements (see, Iazzetta v Vicenzi, 243 AD2d 540, supra). O’Brien, J. P., Sullivan, Goldstein and Feuerstein, JJ., concur.