Mertsaris v. Paolo & Sons Construction Corp.

265 A.D.2d 534, 697 N.Y.S.2d 639, 1999 N.Y. App. Div. LEXIS 10797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1999
• Status: Published

Opinion

—In an action to recover damages for the negligent construction of a residence, the plaintiffs appeal from an order of the Supreme Court, Queens County (Golar, J.), dated October 15, 1998, which denied their motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the case to the trial calendar.

Ordered that the order is affirmed, with one bill of costs.

In seeking to restore their action to the trial calendar after it was dismissed pursuant to CPLR 3404, the plaintiffs were required to show the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party if the case is restored to the calendar (see, McKenna v Solomon, 255 AD2d ; Tate v Peninsula Hosp. Ctr., 255 AD2d 503; Jeffs v Janessa, Inc., 226 AD2d 504). Because the plaintiffs failed to satisfy these requirements, the Supreme Court properly denied their motion (see, Fico v Health Ins. Plan, 248 AD2d 432; Carter v City of New York, 231 AD2d 485). O’Brien, J. P., Sullivan, Gold-stein, Luciano and Feuerstein, JJ., concur.