Ruberto v. Kandel

174 A.D.2d 660, 572 N.Y.S.2d 870, 1991 N.Y. App. Div. LEXIS 9422

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1991
• Status: Published

Opinion

—In a medical malpractice action to recover damages for personal injuries, etc., the defendants separately appeal from an order of the Supreme Court, Suffolk County (Vaughn, J.), dated December 11, 1989, which granted the plaintiffs motion pursuant to CPLR 3404 and CPLR 2005 to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

In order to have his case restored to the trial calendar pursuant to CPLR 3404, the plaintiff was required to show a reasonable excuse for the delay in prosecution, a lack of prejudice to the defendants, and merit to his case (see, Stern v Astino, 161 AD2d 757; Ornstein v Kentucky Fried Chicken, 121 AD2d 610; Sheehan v Hollywood, 112 AD2d 211). Upon review of the record, we find that the plaintiff made the requisite showing and that the Supreme Court, therefore, properly exercised its discretion in restoring this action to the calendar (see, Dramer v Board of Educ., 134 AD2d 478; Roeder v Allstate Ins. Co., 115 AD2d 469). Bracken, J. P., Eiber, Harwood and Balletta, JJ., concur.