Kinsler v. Iovino

277 A.D.2d 286, 715 N.Y.S.2d 665, 2000 N.Y. App. Div. LEXIS 11722

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated December 10, 1999, which denied their motion pursuant to CPLR 3404 to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

In order to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404, the plaintiff must establish: (1) the merits of the case, (2) a reasonable excuse for the delay, (3) the absence of an intent to abandon the matter, and (4) the lack of prejudice to the nonmoving party if the case is restored to the calendar (see, Rudy v Chasky, 260 AD2d 625; Iazzetta v Vicenzi, 243 AD2d 540). All four components must be satisfied before the dismissal can be properly vacated (see, Rudy v Chasky, supra; Iazzetta v Vicenzi, supra). Since the plaintiffs failed to demonstrate either the existence of a meritorious cause of action or a reasonable excuse for their delay, the Supreme Court properly denied their motion to restore the action to the trial calendar. Bracken, J. P., Santucci, Altman and Florio, JJ., concur.