Swanson v. Eichler

Appellate Division of the Supreme Court of New York

Swanson v. Eichler

68 A.D.3d 975, 889 N.Y.2d 853

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

DecidedDecember 15, 2009

StatusPublished

Cited by1 cases

This text of 68 A.D.3d 975 (Swanson v. Eichler) 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.

Bluebook

Swanson v. Eichler, 68 A.D.3d 975, 889 N.Y.2d 853 (N.Y. Ct. App. 2009).

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Opinion

“A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish: (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 [976]*976the action, and (4) a lack of prejudice to the defendant” (Borrelli v Maye, 293 AD2d 506 [2002]). Since the plaintiff failed to establish the last three of those factors, the Supreme Court properly denied the plaintiffs motion, in effect, to restore the action to the trial calendar (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]; Schwartz v Mandelbaum & Gluck, 266 AD2d 273 [1999]; cf. Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.

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“A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish: (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 [976]*976the action, and (4) a lack of prejudice to the defendant” (Borrelli v Maye, 293 AD2d 506 [2002]). Since the plaintiff failed to establish the last three of those factors, the Supreme Court properly denied the plaintiffs motion, in effect, to restore the action to the trial calendar (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]; Schwartz v Mandelbaum & Gluck, 266 AD2d 273 [1999]; cf. Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.

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Bluebook (online)

68 A.D.3d 975, 889 N.Y.2d 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swanson-v-eichler-nyappdiv-2009.

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