Lafata v. 712 Fifth Avenue Associates

Appellate Division of the Supreme Court of New York

Lafata v. 712 Fifth Avenue Associates

238 A.D.2d 552, 657 N.Y.S.2d 947, 1997 N.Y. App. Div. LEXIS 4409

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

DecidedApril 28, 1997

StatusPublished

Cited by2 cases

This text of 238 A.D.2d 552 (Lafata v. 712 Fifth Avenue Associates) 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.

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Lafata v. 712 Fifth Avenue Associates, 238 A.D.2d 552, 657 N.Y.S.2d 947, 1997 N.Y. App. Div. LEXIS 4409 (N.Y. Ct. App. 1997).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated May 3,1996, which granted the plaintiffs’ motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and restored the action to the trial calendar conditioned on the payment of $500 by the plaintiffs’ attorney to the defendants.

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

A party seeking to restore a case which has been dismissed pursuant to CPLR 3404 must demonstrate a reasonable excuse for the delay, the existence of a meritorious cause of action, an absence of intent to abandon the action, and lack of prejudice to the nonmoving party. All four components of the test must be satisfied for the dismissal to be properly vacated (see, Pellegrino v St. Agnes Hosp., 216 AD2d 447; Roland v Napolitano, 209 AD2d 501; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). Upon our review of the record, we conclude that the plaintiffs failed, to demonstrate the required elements, and thus, the Supreme Court improperly granted their motion to restore (see, Roland v Napolitano, supra; Rodriguez v Hercules Chem. Co., 228 AD2d 319; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194). Bracken, J. P., O’Brien, Santucci, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated May 3,1996, which granted the plaintiffs’ motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and restored the action to the trial calendar conditioned on the payment of $500 by the plaintiffs’ attorney to the defendants.

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

A party seeking to restore a case which has been dismissed pursuant to CPLR 3404 must demonstrate a reasonable excuse for the delay, the existence of a meritorious cause of action, an absence of intent to abandon the action, and lack of prejudice to the nonmoving party. All four components of the test must be satisfied for the dismissal to be properly vacated (see, Pellegrino v St. Agnes Hosp., 216 AD2d 447; Roland v Napolitano, 209 AD2d 501; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). Upon our review of the record, we conclude that the plaintiffs failed, to demonstrate the required elements, and thus, the Supreme Court improperly granted their motion to restore (see, Roland v Napolitano, supra; Rodriguez v Hercules Chem. Co., 228 AD2d 319; Friedberg v Bay Ridge Orthopedic Assocs., 122 AD2d 194). Bracken, J. P., O’Brien, Santucci, Friedmann and Goldstein, JJ., concur.

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238 A.D.2d 552, 657 N.Y.S.2d 947, 1997 N.Y. App. Div. LEXIS 4409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafata-v-712-fifth-avenue-associates-nyappdiv-1997.

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