Prevete Bros. v. City of New York

211 A.D.2d 775, 621 N.Y.S.2d 913, 1995 N.Y. App. Div. LEXIS 702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1995
• Status: Published

Opinion

In an action to recover damages for conversion of property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated January 18, 1994, as, upon reargument, adhered to the prior determination denying the plaintiff’s motion to restore the matter to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

A party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay in the prosecution of the lawsuit, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party (see, Civello v Grossman, 192 AD2d 636). All of the elements of the test must be satisfied in order for the order of dismissal to be vacated (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610).

In this case, the plaintiff failed to establish a reasonable explanation for the extensive delay in the prosecution of the lawsuit (see, Rosser v Scacalossi, 140 AD2d 318). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.