Padded Wagon, Inc. v. Associates Commercial Corp.

92 A.D.3d 430, 937 N.Y.2d 592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2012
• Status: Published

Opinion

It is black letter law that “[a] party seeking to have a case restored to the trial calendar must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action and the absence of prejudice to the opposing party” (Kamara v Ambert, 89 AD3d 612, 613 [2011]). Furthermore “[a]ll four conditions must be satisfied” (Campbell v Crystal Realty Assoc. Ltd. Partnership, 276 AD2d 328, 328 [2000]).

Here, plaintiff failed to offer any excuse for passively waiting for a trial date and then first seeking relief more than three years after the dismissal for failure to appear (see Spivey v Bouteureira, 259 AD2d 425 [1999]). To the extent that plaintiffs excuse for the delay may be attributed to law office failure, it is unsubstantiated (see Okun v Tanners, 11 NY3d 762 [2008]). Plaintiffs attempt to demonstrate merit for the first time in its attorney’s reply, unaccompanied by an affidavit from a person claiming knowledge of the facts, was insufficient (see Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]). Concur — Mazzarelli, J.E, Catterson, Renwick and Román, JJ.