Diamond v. J.B.J. Management Co.

Appellate Division of the Supreme Court of New York

Diamond v. J.B.J. Management Co.

220 A.D.2d 378, 631 N.Y.S.2d 439

Appellate Division of the Supreme Court of the State of New York·Decided October 31, 1995·Published·Cited by 8 cases

Opinion

—In an action to recover damages for personal injuries, the defendant J.B.J. Management Company appeals from an order of the Supreme Court, Queens County (Smith, J.), dated May 18,1994, [379]*379which granted the plaintiffs motion to vacate the dismissal of the action and to restore it to the trial calendar.

Ordered that the order is reversed, on the law, with costs, the plaintiffs motion is denied, and the action is dismissed.

Before a court may grant a motion to vacate the dismissal of an action pursuant to CPLR 3404, the plaintiff must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v City of New York, 193 AD2d 720, 721; Malpass v Mavis Tire Supply Corp., 143 AD2d 890; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611).

In the present case the action was marked off the trial calendar for more than two and one-half years. The plaintiffs only excuse for the delay was that his counsel inadvertently misplaced the file and thought that the matter had been restored to the trial calendar. That excuse is not acceptable (see, Robinson v New York City Tr. Auth., 203 AD2d 351). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant J.B.J. Management Company appeals from an order of the Supreme Court, Queens County (Smith, J.), dated May 18,1994, [379]*379which granted the plaintiffs motion to vacate the dismissal of the action and to restore it to the trial calendar.

Ordered that the order is reversed, on the law, with costs, the plaintiffs motion is denied, and the action is dismissed.

Before a court may grant a motion to vacate the dismissal of an action pursuant to CPLR 3404, the plaintiff must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v City of New York, 193 AD2d 720, 721; Malpass v Mavis Tire Supply Corp., 143 AD2d 890; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611).

In the present case the action was marked off the trial calendar for more than two and one-half years. The plaintiffs only excuse for the delay was that his counsel inadvertently misplaced the file and thought that the matter had been restored to the trial calendar. That excuse is not acceptable (see, Robinson v New York City Tr. Auth., 203 AD2d 351). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.

Diamond v. J.B.J. Management Co., 220 A.D.2d 378, 631 N.Y.S.2d 439 (N.Y. Ct. App. 1995).

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Opinion

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