Stancati v. Weber

Apr 11, 2005
Versions:17 A.D.3d 447
792 N.Y.S.2d 612
2005 N.Y. App. Div. LEXIS 3861

In an action, inter alia, to recover damages for breach of contract, misrepresentation, and assault, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated January 22, 2004, which denied her motion to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

A party seeking to restore a case 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 meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Basetti v Nour, 287 AD2d 126, 130 [2001]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]).

Here, the plaintiff failed to satisfy all four components of the test. The plaintiff‘s excuse that her attorney failed to appear at the call of the calendar on February 14, 2001, because she was unaware of the date, amounted to law office failure, which, under the circumstances of this case, did not constitute a reasonable excuse (see Castillo v City of New York, 6 AD3d 568 [2004]; Cruz v Volkswagen of Am., 277 AD2d 340 [2000]; Kourtsounis v Chakrabarty, 254 AD2d 394 [1998]; Collins v New York City Health & Hosps. Corp., 266 AD2d 178 [1999]). Accordingly, the plaintiff‘s motion was properly denied. Adams, J.P., Cozier, Ritter and Skelos, JJ., concur.