Swanson v. Eichler
68 A.D.3d 975
| N.Y. App. Div. | 2009

“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: (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 *976the action, and (4) a lack of prejudice to the defendant” (Borrelli v Maye, 293 AD2d 506 [2002]). Since the plaintiff failed to establish the last three of those factors, the Supreme Court properly denied the plaintiffs motion, in effect, to restore the action to the trial calendar (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]; Schwartz v Mandelbaum & Gluck, 266 AD2d 273 [1999]; cf. Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.