McClure v. Schindler Elevator Corp.

Appellate Division of the Supreme Court of New York

McClure v. Schindler Elevator Corp.

297 A.D.2d 335, 746 N.Y.2d 394, 746 N.Y.S.2d 394, 2002 N.Y. App. Div. LEXIS 7986

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

DecidedAugust 19, 2002

StatusPublished

Cited by1 cases

This text of 297 A.D.2d 335 (McClure v. Schindler Elevator Corp.) 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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McClure v. Schindler Elevator Corp., 297 A.D.2d 335, 746 N.Y.2d 394, 746 N.Y.S.2d 394, 2002 N.Y. App. Div. LEXIS 7986 (N.Y. Ct. App. 2002).

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Opinion

A plaintiff moving to restore an action to the trial calendar more than one year after it was stricken, 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; cf. Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc., 289 AD2d 372). Contrary to the appellant’s contention, the plaintiff established these elements. Accordingly, the Supreme Court properly exercised its discretion in restoring the action to the trial calendar. Prudenti, P.J., S. Miller, O’Brien, McGinity and Crane, JJ., concur.

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A plaintiff moving to restore an action to the trial calendar more than one year after it was stricken, 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; cf. Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc., 289 AD2d 372). Contrary to the appellant’s contention, the plaintiff established these elements. Accordingly, the Supreme Court properly exercised its discretion in restoring the action to the trial calendar. Prudenti, P.J., S. Miller, O’Brien, McGinity and Crane, JJ., concur.

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Bluebook (online)

297 A.D.2d 335, 746 N.Y.2d 394, 746 N.Y.S.2d 394, 2002 N.Y. App. Div. LEXIS 7986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclure-v-schindler-elevator-corp-nyappdiv-2002.

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