Stewart v. Tapps Supermarket, Inc.

Appellate Division of the Supreme Court of New York

Stewart v. Tapps Supermarket, Inc.

289 A.D.2d 561, 735 N.Y.S.2d 800, 2001 N.Y. App. Div. LEXIS 13086

Appellate Division of the Supreme Court of the State of New York·Decided December 31, 2001·Published·Cited by 4 cases

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jones, J.), dated March 9, 2001, which granted the plaintiffs motion pursuant to CPLR 3404 to restore the action to the trial calendar.

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

It is well settled that a plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, Basetti v Nour, 287 AD2d 126; Schwartz v Mandelbaum & Gluck, 266 AD2d 273; Moses v Wilmaud Realty Corp., 262 AD2d 538). The plaintiffs affidavit of merit, consisting of bare and conclusory allegations, which simply mirror the allegations of the complaint and bill of particulars, was patently insufficient to establish a meritorious cause of action (see, Vargas v Flatbush Pest Control, 178 AD2d 528). Accordingly, the Supreme Court erred in granting the motion. Krausman, J. P., Luciano, Smith, Adams and Prudenti, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jones, J.), dated March 9, 2001, which granted the plaintiffs motion pursuant to CPLR 3404 to restore the action to the trial calendar.

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

It is well settled that a plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, Basetti v Nour, 287 AD2d 126; Schwartz v Mandelbaum & Gluck, 266 AD2d 273; Moses v Wilmaud Realty Corp., 262 AD2d 538). The plaintiffs affidavit of merit, consisting of bare and conclusory allegations, which simply mirror the allegations of the complaint and bill of particulars, was patently insufficient to establish a meritorious cause of action (see, Vargas v Flatbush Pest Control, 178 AD2d 528). Accordingly, the Supreme Court erred in granting the motion. Krausman, J. P., Luciano, Smith, Adams and Prudenti, JJ., concur.

Stewart v. Tapps Supermarket, Inc., 289 A.D.2d 561, 735 N.Y.S.2d 800, 2001 N.Y. App. Div. LEXIS 13086 (N.Y. Ct. App. 2001).

Pincite

289 A.D.2d 561 (Stewart v. Tapps Supermarket, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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