Santiago v. Petschauer

208 A.D.2d 517, 616 N.Y.S.2d 1004, 1994 N.Y. App. Div. LEXIS 9346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1994
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano J.), dated February 26, 1993, which granted the defendants’ motion pursuant to CPLR 3404 to dismiss the action as abandoned.

Ordered that the order is affirmed, with costs.

We find that the Supreme Court properly granted the defendants’ motion to dismiss the action pursuant to CPLR 3404 as abandoned because, once the case had remained "marked off” the calendar for over one year, the case was automatically dismissed for neglect to prosecute (see, CPLR 3404; Roberts v Town of Hempstead 206 AD2d 466; Nepomniaschi v Goldstein, 182 AD2d 743). Additionally, the plaintiff has failed to present any evidence to meet his burden of proving that (1) he has a meritorious cause of action, (2) there was reasonable cause for the delay, (3) there was a lack of intent to abandon the action, and (4) there is no prejudice to the defendant (see, Roberts v Town of Hempstead, supra; Knight v City of New York, 193 AD2d 720; Malpass v Mavis Tire Supply Corp., 143 AD2d 890). Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ.