Vaughn v. Westfield, LLC

Opinion

Vaughn v Westfield, LLC

2026 NY Slip Op 04895

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Glenda Vaughn, appellant,

v

Westfield, LLC, respondent, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2025-01377, (Index No. 617918/17)

Francesca E. Connolly, J.P.

Barry E. Warhit

Helen Voutsinas

Donna-Marie E. Golia, JJ.

Law Office of Rhonda L. Maco, PLLC, Garden City, NY, for appellant.

Law Office of Richard J. DaVolio, PLLC, Sayville NY, for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated December 6, 2024. The order, insofar as appealed from, denied the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries arising out of an alleged incident that occurred on September 21, 2014, on premises owned by the defendant Westfield, LLC (hereinafter the defendant) (see Vaughn v Westfield, LLC, 216 AD3d 849, 849). The action was removed from the trial calendar on August 14, 2023, and automatically dismissed on August 14, 2024, pursuant to CPLR 3404.

On August 22, 2024, the plaintiff moved to vacate the dismissal of the action and to restore the action to the trial calendar. In an order dated December 6, 2024, the Supreme Court, inter alia, denied the motion. The plaintiff appeals.

"A plaintiff seeking to vacate a dismissal of an action and to restore the action to the trial calendar more than one year after it has been marked off, and after it has been dismissed pursuant to CPLR 3404, must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants" (Martone v Huang, 216 AD3d 1152, 1153 [internal quotation marks omitted]; see CPLR 3404; Hagler v Southampton Hosp., 164 AD3d 479, 480). "The plaintiff is required to satisfy all four components of the test before the dismissal can be properly vacated and the case restored" (Bornstein v Clearview Props., Inc., 68 AD3d 1033, 1034; see Martone v Huang, 216 AD3d at 1153).

Here, the plaintiff failed to meet this burden. The prior determination that the defendant failed to demonstrate its prima facie entitlement to summary judgment dismissing the plaintiff's cause of action to recover damages arising from negligence (see Vaughn v Westfield, LLC, 216 AD3d at 850) does not constitute law of the case establishing that the plaintiff has a potentially meritorious negligence claim (see Mooney v City of New York, 78 AD3d 795, 797). Further, the [*2]plaintiff did not rebut the presumption of abandonment that attached pursuant to CPLR 3404, as there is no indication in the record that the plaintiff engaged in any activity regarding the action during the time that elapsed from the date the action was marked off the trial calendar to the date the plaintiff moved to restore the action (see Patriarca v Oreckinto, 185 AD3d 710, 711; Agli v O'Connor, 92 AD3d 815, 816). The plaintiff also did not offer a reasonable excuse for the delay in moving to restore the action to the trial calendar (see Brito v MS/WG 1107 Broadway Owner, LLC, 234 AD3d 654, 656). Finally, the plaintiff failed to demonstrate that the defendant would not be prejudiced if the action were to be restored to the trial calendar, given the ten-year delay between the date this action accrued and the date of the plaintiff's motion to vacate the dismissal of the action (see Martone v Huang, 216 AD3d at 1154; Mooney v City of New York, 78 AD3d at 795; Gajek v Hampton Bays Volunteer Ambulance Corps., Inc., 77 AD3d 885, 886; Karwowski v Wonder Works Constr., 73 AD3d 1133, 1133).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court