Smith v. City of New York

Appellate Division of the Supreme Court of New York

Smith v. City of New York

203 A.D.2d 553, 612 N.Y.S.2d 929

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

DecidedApril 25, 1994

StatusPublished

Cited by2 cases

This text of 203 A.D.2d 553 (Smith v. City of New York) 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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Smith v. City of New York, 203 A.D.2d 553, 612 N.Y.S.2d 929 (N.Y. Ct. App. 1994).

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—In an action to recover damages for false arrest, false imprisonment and malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), dated November 25, 1991, which denied his motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

It is well settled that a motion to vacate the automatic dismissal of an action pursuant to CPLR 3404 and to restore the matter to the calendar is addressed to the sound discretion of the trial court (see, Hatcher v Cassanova, 180 AD2d 664). We discern no improvident exercise of discretion in this case. The plaintiff has failed to affirmatively demonstrate a meritorious cause of action against the defendant, a reasonable excuse for the delay, or a lack of prejudice to the defendant (see, Knight v City of New York, 193 AD2d 720; Hatcher v Cassanova, supra; Calderon v County of Westchester, 111 AD2d 208; Hargett v Health & Hosps. Corp., 88 AD2d 633). Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.

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—In an action to recover damages for false arrest, false imprisonment and malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), dated November 25, 1991, which denied his motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

It is well settled that a motion to vacate the automatic dismissal of an action pursuant to CPLR 3404 and to restore the matter to the calendar is addressed to the sound discretion of the trial court (see, Hatcher v Cassanova, 180 AD2d 664). We discern no improvident exercise of discretion in this case. The plaintiff has failed to affirmatively demonstrate a meritorious cause of action against the defendant, a reasonable excuse for the delay, or a lack of prejudice to the defendant (see, Knight v City of New York, 193 AD2d 720; Hatcher v Cassanova, supra; Calderon v County of Westchester, 111 AD2d 208; Hargett v Health & Hosps. Corp., 88 AD2d 633). Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.

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203 A.D.2d 553, 612 N.Y.S.2d 929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-new-york-nyappdiv-1994.

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