Pellegrino v. St. Agnes Hospital, Inc.

Appellate Division of the Supreme Court of New York

Pellegrino v. St. Agnes Hospital, Inc.

216 A.D.2d 447, 628 N.Y.S.2d 540, 1995 N.Y. App. Div. LEXIS 6484

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

DecidedJune 19, 1995

StatusPublished

Cited by3 cases

This text of 216 A.D.2d 447 (Pellegrino v. St. Agnes Hospital, Inc.) 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.

Bluebook

Pellegrino v. St. Agnes Hospital, Inc., 216 A.D.2d 447, 628 N.Y.S.2d 540, 1995 N.Y. App. Div. LEXIS 6484 (N.Y. Ct. App. 1995).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), dated August 9, 1994, which denied its motion to dismiss the complaint for failure to prosecute, deemed the matter ready for trial, and restored it to the calendar.

Ordered that the order is affirmed, with costs.

In a proper exercise of its discretion, a court may grant a request to vacate a dismissal for abandonment on the basis of failure to prosecute pursuant to CPLR 3404, provided that the plaintiff carries the affirmative burden of establishing all of the following four factors: (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v City of New York, 193 AD2d 720, 721; Malpass v Mavis Tire Supply Corp., 143 AD2d 890; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). The record establishes that the plaintiffs satisfied their burden of establishing each of the four factors, and the court’s ruling was, therefore, correct. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), dated August 9, 1994, which denied its motion to dismiss the complaint for failure to prosecute, deemed the matter ready for trial, and restored it to the calendar.

Ordered that the order is affirmed, with costs.

In a proper exercise of its discretion, a court may grant a request to vacate a dismissal for abandonment on the basis of failure to prosecute pursuant to CPLR 3404, provided that the plaintiff carries the affirmative burden of establishing all of the following four factors: (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v City of New York, 193 AD2d 720, 721; Malpass v Mavis Tire Supply Corp., 143 AD2d 890; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). The record establishes that the plaintiffs satisfied their burden of establishing each of the four factors, and the court’s ruling was, therefore, correct. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.

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Bluebook (online)

216 A.D.2d 447, 628 N.Y.S.2d 540, 1995 N.Y. App. Div. LEXIS 6484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pellegrino-v-st-agnes-hospital-inc-nyappdiv-1995.

Opinion

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