Tate v. Peninsula Hospital Center

255 A.D.2d 503, 680 N.Y.S.2d 609, 1998 N.Y. App. Div. LEXIS 12670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated December 24, 1997, which denied her motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

This case was marked off the trial calendar in March 1996 to complete discovery and was automatically dismissed as abandoned a year later, pursuant to CPLR 3404 (see, Rosser v Scacalossi, 140 AD2d 318). In September 1997, the plaintiff moved to restore the action to the trial calendar. The Supreme Court denied the motion and we affirm.

“A party seeking to restore a case to the trial calendar after it has been dismissed, pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to the nonmoving party in the event that the case is restored to the trial calendar” (Jeffs v Janessa, Inc., 226 AD2d 504, quoting Civello v Grossman, 192 AD2d 636).

The plaintiff has failed to demonstrate a reasonable excuse for her delay of 11 months in obtaining a corrected chiropractor’s report, and an additional seven months in moving to restore the case to the calendar. In the absence of any explanation, it must be presumed that the plaintiff abandoned the action (see, Bohlman v Lorenzen, 208 AD2d 582; Kopilas v Peterson, 206 AD2d 460, 461; Escobar v Deepdale Gen. Hosp., 172 AD2d 486; Horn v Schenck Transp. Co., 65 AD2d 589).

Furthermore, in view of the plaintiffs lengthy delay in moving to restore the case to the trial calendar and the fact that six and one-half years have elapsed since the date of the accident that allegedly caused the plaintiffs injuries, the defendant would be prejudiced if the matter were restored to the trial calendar (see, Jeffs v Janessa, Inc., supra; Civello v Grossman, supra; Hewitt v Booth Mem. Med. Ctr., 178 AD2d 401). Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.