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

Appellate Division of the Supreme Court of the State of New York·Decided April 25, 1994·Published·Cited by 2 cases

Opinion

—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.

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

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

Pincite

203 A.D.2d 553 (Smith v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related