Laxton v. Price Chopper, Inc.

Appellate Division of the Supreme Court of New York

Laxton v. Price Chopper, Inc.

276 A.D.2d 752, 715 N.Y.S.2d 335, 2000 N.Y. App. Div. LEXIS 10911

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

DecidedOctober 30, 2000

StatusPublished

This text of 276 A.D.2d 752 (Laxton v. Price Chopper, Inc.) 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

Laxton v. Price Chopper, Inc., 276 A.D.2d 752, 715 N.Y.S.2d 335, 2000 N.Y. App. Div. LEXIS 10911 (N.Y. Ct. App. 2000).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated January 6, 2000, which granted the defendant’s motion [753]*753to dismiss the action as abandoned and denied her cross motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the existence of a meritorious cause of action, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and lack of prejudice to the defendant (see, Fishman v City of New York, 255 AD2d 485). All four requirements must be met before the dismissal can be properly vacated (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiff failed to satisfy the standard. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated January 6, 2000, which granted the defendant’s motion [753]*753to dismiss the action as abandoned and denied her cross motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the existence of a meritorious cause of action, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and lack of prejudice to the defendant (see, Fishman v City of New York, 255 AD2d 485). All four requirements must be met before the dismissal can be properly vacated (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiff failed to satisfy the standard. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.

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Bluebook (online)

276 A.D.2d 752, 715 N.Y.S.2d 335, 2000 N.Y. App. Div. LEXIS 10911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laxton-v-price-chopper-inc-nyappdiv-2000.

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