DeMarquez v. Gallo

Appellate Division of the Supreme Court of New York

DeMarquez v. Gallo

29 A.D.3d 853, 814 N.Y.S.2d 528

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

DecidedMay 23, 2006

StatusPublished

Cited by1 cases

This text of 29 A.D.3d 853 (DeMarquez v. Gallo) 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

DeMarquez v. Gallo, 29 A.D.3d 853, 814 N.Y.S.2d 528 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated August 18, 2004, which denied her motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the dismissal is vacated, and the action is restored to the trial calendar.

The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion to restore the action to the trial calendar after it had been dismissed pursuant to CPLR 3404. The plaintiff demonstrated a meritorious cause of action, a reasonable excuse for the failure to timely restore, a lack of intent to abandon the matter, and a lack of prejudice to the opposing party (see Kranz v Braverman, 15 AD3d 451 [2005]). Thus, her motion should have been granted. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated August 18, 2004, which denied her motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the dismissal is vacated, and the action is restored to the trial calendar.

The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion to restore the action to the trial calendar after it had been dismissed pursuant to CPLR 3404. The plaintiff demonstrated a meritorious cause of action, a reasonable excuse for the failure to timely restore, a lack of intent to abandon the matter, and a lack of prejudice to the opposing party (see Kranz v Braverman, 15 AD3d 451 [2005]). Thus, her motion should have been granted. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.

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Bluebook (online)

29 A.D.3d 853, 814 N.Y.S.2d 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarquez-v-gallo-nyappdiv-2006.

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