Rodriguez v. United Parcel Service, Inc.

Appellate Division of the Supreme Court of New York

Rodriguez v. United Parcel Service, Inc.

17 A.D.3d 658, 792 N.Y.S.2d 915, 2005 N.Y. App. Div. LEXIS 4385

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

DecidedApril 25, 2005

StatusPublished

Cited by2 cases

This text of 17 A.D.3d 658 (Rodriguez v. United Parcel Service, 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.

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Rodriguez v. United Parcel Service, Inc., 17 A.D.3d 658, 792 N.Y.S.2d 915, 2005 N.Y. App. Div. LEXIS 4385 (N.Y. Ct. App. 2005).

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Opinion

[659]*659In an action to recover damages for personal injuries, etc., the defendant United Parcel Service, Inc. of Ohio appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated June 25, 2004, which denied its motion pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against it and granted the plaintiffs’ cross motion for leave to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

This action was marked off the calendar on March 6, 2003, and automatically dismissed one year later pursuant to CPLR 3404 when the plaintiffs failed to restore it within that year. About one month after the automatic dismissal, and in response to the appellant’s motion to dismiss the complaint, the plaintiffs cross-moved to restore the action to the calendar. The plaintiffs met their burden of demonstrating (1) a reasonable excuse for the failure to timely restore, (2) a meritorious cause of action, (3) a lack of intent to abandon the matter, and (4) a lack of prejudice to the opposing party (see Basetti v Nour, 287 AD2d 126, 131 [2001]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs’ cross motion for leave to restore (see Sanchez v Denkberg, 284 AD2d 446 [2001]). Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.

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[659]*659In an action to recover damages for personal injuries, etc., the defendant United Parcel Service, Inc. of Ohio appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated June 25, 2004, which denied its motion pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against it and granted the plaintiffs’ cross motion for leave to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

This action was marked off the calendar on March 6, 2003, and automatically dismissed one year later pursuant to CPLR 3404 when the plaintiffs failed to restore it within that year. About one month after the automatic dismissal, and in response to the appellant’s motion to dismiss the complaint, the plaintiffs cross-moved to restore the action to the calendar. The plaintiffs met their burden of demonstrating (1) a reasonable excuse for the failure to timely restore, (2) a meritorious cause of action, (3) a lack of intent to abandon the matter, and (4) a lack of prejudice to the opposing party (see Basetti v Nour, 287 AD2d 126, 131 [2001]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs’ cross motion for leave to restore (see Sanchez v Denkberg, 284 AD2d 446 [2001]). Florio, J.P., Krausman, Crane, Rivera and Fisher, JJ., concur.

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Bluebook (online)

17 A.D.3d 658, 792 N.Y.S.2d 915, 2005 N.Y. App. Div. LEXIS 4385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-united-parcel-service-inc-nyappdiv-2005.

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