Stern v. Astino

161 A.D.2d 757, 558 N.Y.S.2d 848, 1990 N.Y. App. Div. LEXIS 6757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1990
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries sustained in an automobile accident, the defendants appeal from an order of the Supreme Court, Nassau County (Saladino, J.), dated January 20, 1989, which granted plaintiffs’ motion to restore their action to the Trial Calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

In seeking to have their case restored to the Trial Calendar pursuant to CPLR 3404, the plaintiffs were required to show a reasonable excuse for the delay in prosecution, merit to their action, and a lack of prejudice to the defendants (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720).

Upon a review of the record, we find that no clear explanation was given for the inordinate delay in the prosecution of this matter. Having failed to sustain their burden on the motion to restore, the plaintiffs should not have been allowed to restore their action to the Trial Calendar (see, CPLR 3404; Rodriguez v Middle Atl. Auto Leasing, supra, at 723). Mangano, P. J., Bracken, Kunzeman and Harwood, JJ., concur.