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Royster v. Lopez

247 A.D.2d 459 Court N.Y. App. Div. Decision date 1998-02-09 English

Judges Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.

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p. 459
Marie I. Royster et al., Respondents, v Juan Lopez et al., Appellants.
[668 NYS2d 105]

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated June 3, 1997, which granted the plaintiffs’ motion to restore the matter to the trial calendar by, in effect, vacating the automatic dismissal pursuant to CPLR 3404, and expressly vacating the prior note of issue without prejudice to filing of a new note of issue, and, upon such filing, restoring the action to the trial calendar.

p. 460
Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion is denied.

A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party (see, Carco Group v Murphy, 233 AD2d 415 ; Bohlman v Lorenzen, 208 AD2d 582 ; Innvar v Schapira, 208 AD2d 903 ). The plaintiffs have failed on all counts. Thus, the court erred by vacating the dismissal and restoring the matter to the trial calendar.

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.

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