Magnone v. Gemm Custom Brokers, Inc.

Apr 11, 2005
Versions:

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated March 11, 2004, which granted 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 reversed, on the law and as a matter of discretion, with costs, and the motion is denied.

A case struck from the calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the plaintiff demonstrates a 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 defendant (see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Cobos v Phieffer, 8 AD3d 424 [2004]). The plaintiffs failed to demonstrate, inter alia, that they have a meritorious cause of action (see Adamson v Evans, 283 AD2d 527 [2001]; Surace v Kersten, 278 AD2d 226 [2000]; Phifer v State of New York, 204 AD2d 612 [1994]). Accordingly, their motion to vacate the dismissal and to restore the action to the trial calendar should have been denied. Adams, J.P., Cozier, Ritter and Skelos, JJ., concur.