Metral v. Bonifacio

Oct 30, 2003
Versions:309 A.D.2d 724
766 N.Y.S.2d 550
2003 N.Y. App. Div. LEXIS 11259

Order, Supreme Court, Bronx County (Howard Silver, J.), entered September 25, 2002, which denied plaintiffs’ motion to vacate the Clerk’s dismissal of the case on May 1, 2002 and to restore it to the calendar, unanimously affirmed, without costs.

The law office failure leading to the dismissal was not excusable. The default was part of a pattern of dilatory behavior, as evidenced by plaintiff’s three prior motions to restore, which were granted (see Rudes v Magna Stables Co., 277 AD2d 63 [2000]; Campenni v Ridgecroft Estates Owners, 261 AD2d 496, 497 [1999]; Fink Weinberger v Rosenkrantz, 252 AD2d 368 [1998]). Twelve years having transpired since the accident and discovery not having been commenced, defendants would be severely prejudiced by restoration (see Tortorello v Carlin, 286 AD2d 628 [2001]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Andrias, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.