Rodriguez v. Rachelson

Appellate Division of the Supreme Court of New York

Rodriguez v. Rachelson

306 A.D.2d 457, 762 N.Y.S.2d 261

Appellate Division of the Supreme Court of the State of New York·Decided June 23, 2003·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jones, J.), entered August 15, 2002, which granted the plaintiffs’ motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The instant action was “marked off” the trial calendar in April 1999 and automatically dismissed in April 2000 pursuant to CPLR 3404. The plaintiffs did not move to restore the action to the trial calendar until April 2002. Under these circumstances, the plaintiffs were required to demonstrate the merit of the action, a reasonable excuse for the delay in making the motion to restore, lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). The plaintiffs failed to satisfy all four components of the test (see Ruiz v Roofeh, 285 AD2d 541 [2001]).

Accordingly, the motion should have been denied. Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jones, J.), entered August 15, 2002, which granted the plaintiffs’ motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The instant action was “marked off” the trial calendar in April 1999 and automatically dismissed in April 2000 pursuant to CPLR 3404. The plaintiffs did not move to restore the action to the trial calendar until April 2002. Under these circumstances, the plaintiffs were required to demonstrate the merit of the action, a reasonable excuse for the delay in making the motion to restore, lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). The plaintiffs failed to satisfy all four components of the test (see Ruiz v Roofeh, 285 AD2d 541 [2001]).

Accordingly, the motion should have been denied. Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.

Rodriguez v. Rachelson, 306 A.D.2d 457, 762 N.Y.S.2d 261 (N.Y. Ct. App. 2003).

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Opinion

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