New Field International, Inc. v. Klein

277 A.D.2d 364, 716 N.Y.S.2d 336, 2000 N.Y. App. Div. LEXIS 12092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—In an action, inter alia, to recover payment for goods sold and delivered, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kitson, J.), dated December 16, 1999, which denied its motion pursuant to CPLR 3404 to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) an absence of intent to abandon the action, and (4) a lack of prejudice to the nonmoving party in the event the case is restored to the trial calendar. A plaintiff must satisfy all four elements of the test before the dismissed action can properly be restored (see, McCarthy v Bagner, 271 AD2d 509; Miller v Fein, 269 AD2d 371). Since the plaintiff failed to demonstrate these elements, the Supreme Court properly denied its motion to restore the action to the trial calendar (see, Kourtsounis v Chakrabarty, 254 AD2d 394; Swedish v Bourie, 233 AD2d 495; Knight v City of New York, 193 AD2d 720). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.