Higgins v. County of Nassau — 76 A.D.2d 881

Majority

p. 881

Warren Higgins, Jr., Respondent, v County of Nassau, Appellant, and Stannat Sample Service, Inc., et al., Respondents.

In a negligence action to recover damages for personal injuries, etc., which action was dismissed pursuant to CPLR 3404, the defendant County of Nassau appeals from an order of the Supreme Court, Nassau County, dated January 3, 1980, which granted plaintiff’s motion to vacate the dismissal and to restore the action to the Trial Calendar. Order reversed, on the law, without costs or disbursements, and motion denied. It was an improvident exercise of discretion for Special Term to restore the action to the Trial Calendar. Plaintiff failed to make the requisite showing of facts sufficient to excuse his delay in prosecution and to establish a meritorious cause of action (see Barasch v

p. 882

Micucci, 49 NY2d 594 ; Monahan v Fiore, 71 AD2d 914 ). Mangano, J. P., Gibbons, Rabin and Gulotta, JJ., concur.

Cases cited

Barasch v. Micucci 49 NY2d 594 N.Y. 1980-03-25 p. 882
Monahan v. Fiore 71 AD2d 914 N.Y. App. Div. 1979-08-20 p. 882