Peker v. Kaplan

Appellate Division of the Supreme Court of New York

Peker v. Kaplan

268 A.D.2d 572, 702 N.Y.S.2d 852, 2000 N.Y. App. Div. LEXIS 1017

Appellate Division of the Supreme Court of the State of New York·Decided January 31, 2000·Published·Cited by 1 cases

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated September 9, 1998, which denied his motion pursuant to CPLR 3404 to restore the case to the trial calendar.

Ordered that the order is affirmed, with costs.

A party moving pursuant to CPLR 3404 to restore a case to the trial calendar must demonstrate that the case has merit, there is a reasonable excuse for the delay, there was no intent to abandon the matter, and there is no prejudice to the non-moving party (see, Moses v Wilmaud Realty Corp., 262 AD2d 538; Yacono v Waterman S.S. Co., 216 AD2d 556). As the plaintiff failed to satisfy these requirements, the Supreme Court providently exercised its discretion in denying his motion to restore the case to the trial calendar. Ritter, J. P., Friedmann, Feuerstein and Schmidt, JJ., concur.

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—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated September 9, 1998, which denied his motion pursuant to CPLR 3404 to restore the case to the trial calendar.

Ordered that the order is affirmed, with costs.

A party moving pursuant to CPLR 3404 to restore a case to the trial calendar must demonstrate that the case has merit, there is a reasonable excuse for the delay, there was no intent to abandon the matter, and there is no prejudice to the non-moving party (see, Moses v Wilmaud Realty Corp., 262 AD2d 538; Yacono v Waterman S.S. Co., 216 AD2d 556). As the plaintiff failed to satisfy these requirements, the Supreme Court providently exercised its discretion in denying his motion to restore the case to the trial calendar. Ritter, J. P., Friedmann, Feuerstein and Schmidt, JJ., concur.

Peker v. Kaplan, 268 A.D.2d 572, 702 N.Y.S.2d 852, 2000 N.Y. App. Div. LEXIS 1017 (N.Y. Ct. App. 2000).

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