Royster v. Lopez

Appellate Division of the Supreme Court of New York

Royster v. Lopez

247 A.D.2d 459, 668 N.Y.S.2d 105, 1998 N.Y. App. Div. LEXIS 1053

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

DecidedFebruary 9, 1998

StatusPublished

This text of 247 A.D.2d 459 (Royster v. Lopez) 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

Royster v. Lopez, 247 A.D.2d 459, 668 N.Y.S.2d 105, 1998 N.Y. App. Div. LEXIS 1053 (N.Y. Ct. App. 1998).

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Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated June 3, 1997, which granted the plaintiffs’ motion to restore the matter to the trial calendar by, in effect, vacating the automatic dismissal pursuant to CPLR 3404, and expressly vacating the prior note of issue without prejudice to filing of a new note of issue, and, upon such filing, restoring the action to the trial calendar.

[460]*460Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion is denied.

A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party (see, Carco Group v Murphy, 233 AD2d 415; Bohlman v Lorenzen, 208 AD2d 582; Innvar v Schapira, 208 AD2d 903). The plaintiffs have failed on all counts. Thus, the court erred by vacating the dismissal and restoring the matter to the trial calendar.

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated June 3, 1997, which granted the plaintiffs’ motion to restore the matter to the trial calendar by, in effect, vacating the automatic dismissal pursuant to CPLR 3404, and expressly vacating the prior note of issue without prejudice to filing of a new note of issue, and, upon such filing, restoring the action to the trial calendar.

[460]*460Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion is denied.

A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party (see, Carco Group v Murphy, 233 AD2d 415; Bohlman v Lorenzen, 208 AD2d 582; Innvar v Schapira, 208 AD2d 903). The plaintiffs have failed on all counts. Thus, the court erred by vacating the dismissal and restoring the matter to the trial calendar.

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.

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Bluebook (online)

247 A.D.2d 459, 668 N.Y.S.2d 105, 1998 N.Y. App. Div. LEXIS 1053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royster-v-lopez-nyappdiv-1998.

Opinion

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