Borrelli v. Maye, 293 A.D.2d 506

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 1, 2001, which denied his motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

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 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; McCarthy v Bagner, 271 AD2d 509). The plaintiff failed to establish all of these elements. Accordingly, the Supreme Court providently exercised its discretion in denying his motion. Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

Case Details

Case Name: Borrelli v. Maye

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Apr 8, 2002

Citations: 293 A.D.2d 506; 739 N.Y.S.2d 826; 2002 N.Y. App. Div. LEXIS 3515

Court Abbreviation: N.Y. App. Div.