Fishman v. City of New York

Appellate Division of the Supreme Court of New York

Fishman v. City of New York

255 A.D.2d 485, 679 N.Y.S.2d 908, 1998 N.Y. App. Div. LEXIS 12664

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

DecidedNovember 23, 1998

StatusPublished

Cited by1 cases

This text of 255 A.D.2d 485 (Fishman v. City of New York) 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

Fishman v. City of New York, 255 A.D.2d 485, 679 N.Y.S.2d 908, 1998 N.Y. App. Div. LEXIS 12664 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), entered November 26, 1997, which denied their motion, inter alia, to restore the action to the calendar.

Ordered that the order is affirmed, with costs.

A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party (see, Careo Group v Murphy, 233 AD2d 415; Bohlman v Lorenzen, 208 AD2d 582; Innvar v Schapira, 208 AD2d 903). All four requirements must be met to vacate a dismissal pursuant to CPLR 3404 (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiffs have failed to satisfy the standard in this case.

We decline to reach the plaintiffs’ claim regarding the tolling provision for infancy set forth in CPLR 208, as it is being raised for the first time on appeal (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d 659). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, 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, Kings County (Hutcherson, J.), entered November 26, 1997, which denied their motion, inter alia, to restore the action to the calendar.

Ordered that the order is affirmed, with costs.

A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party (see, Careo Group v Murphy, 233 AD2d 415; Bohlman v Lorenzen, 208 AD2d 582; Innvar v Schapira, 208 AD2d 903). All four requirements must be met to vacate a dismissal pursuant to CPLR 3404 (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiffs have failed to satisfy the standard in this case.

We decline to reach the plaintiffs’ claim regarding the tolling provision for infancy set forth in CPLR 208, as it is being raised for the first time on appeal (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d 659). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.

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Bluebook (online)

255 A.D.2d 485, 679 N.Y.S.2d 908, 1998 N.Y. App. Div. LEXIS 12664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishman-v-city-of-new-york-nyappdiv-1998.

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