Ruiz v. Roofeh

Appellate Division of the Supreme Court of New York

Ruiz v. Roofeh

285 A.D.2d 541, 727 N.Y.S.2d 906, 2001 N.Y. App. Div. LEXIS 7479

Appellate Division of the Supreme Court of the State of New York·Decided July 16, 2001·Published·Cited by 1 cases

Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated March 6, 2000, which denied his motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs.

A plaintiff seeking to restore an action to the trial calendar after it has been marked off and dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action, and a lack of prejudice to the defendants if the action is restored. The plaintiff must satisfy all four components of the test before the motion can be granted (see, Lopez v Imperial Delivery Serv., 282 AD2d 190). The plaintiff failed to satisfy all of these elements, and thus, the Supreme Court providently exercised its discretion in denying his motion (see, Furniture Vil. v Schoenberger, 283 AD2d 607). Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.

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—In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated March 6, 2000, which denied his motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with one bill of costs.

A plaintiff seeking to restore an action to the trial calendar after it has been marked off and dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action, and a lack of prejudice to the defendants if the action is restored. The plaintiff must satisfy all four components of the test before the motion can be granted (see, Lopez v Imperial Delivery Serv., 282 AD2d 190). The plaintiff failed to satisfy all of these elements, and thus, the Supreme Court providently exercised its discretion in denying his motion (see, Furniture Vil. v Schoenberger, 283 AD2d 607). Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.

Ruiz v. Roofeh, 285 A.D.2d 541, 727 N.Y.S.2d 906, 2001 N.Y. App. Div. LEXIS 7479 (N.Y. Ct. App. 2001).

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