Henne v. Lefrak

Jan 26, 1998
Versions:246 A.D.2d 628
667 N.Y.S.2d 316
1998 N.Y. App. Div. LEXIS 590

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated November *6296, 1996, which, upon reargument, granted the plaintiffs motion to vacate the automatic dismissal of the complaint and denied their cross motion pursuant to CPLR 3404 to dismiss the action as abandoned.

Ordered that the order is affirmed, with costs.

Restoration of a case to the trial calendar subsequent to an automatic dismissal pursuant to CPLR 3404 is a proper exercise of the court’s discretion if the movant establishes the merit of the action, an excuse for the delay, the lack of intent to deliberately default or abandon the action, and a lack of prejudice to the nonmoving party (see, Felder v New York City Tr. Auth., 238 AD2d 543; Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiff here satisfied that standard. The plaintiffs proposed stipulation to restore the matter to the trial calendar, which was sent to the defendants, demonstrated that she did not intend to abandon the matter. In addition, it appears that the defendants will not be prejudiced. The law office failure which the plaintiff proffered constituted an acceptable excuse for the delay under the circumstances of this case. The plaintiffs affidavit of merit and supporting medical reports demonstrated a potentially meritorious cause of action.

The defendants’ additional contention is without merit. Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.