Fernandez v. Staten Island Oral & Maxillofacial Surgery Associates, P. C.

289 A.D.2d 372, 734 N.Y.S.2d 886, 2001 N.Y. App. Div. LEXIS 12174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2001
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated February 5, 2001, which granted the defendants’ motion to dismiss the action pursuant to CPLR 3404 and denied her cross motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A party moving to restore an action to the trial calendar more than one year after it was stricken from the calendar, after it has been dismissed pursuant to CPLR 3404, must establish: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, Basetti v Nour, 287 AD2d 126; McCarthy v Bagner, 271 AD2d 509; Schwartz v Mandelbaum & Gluck, 266 AD2d 273). The plaintiff failed to establish these elements. Accordingly, the Supreme Court correctly granted the defendants’ motion and denied the plaintiffs cross motion. Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.