Braun v. Safdie — 2 A.D.3d 473

Majority

p. 473

Murray T. Braun et al., Respondents, v Abe Safdie et al., Appellants.

[767 NYS2d 882]

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated December 23, 2002, which granted the plaintiffs’ motion to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

This action was marked off the trial calendar in May 2001 and automatically dismissed in May 2002 pursuant to CPLR 3404. The plaintiffs did not move to restore the action until November 2002. Under these circumstances, the plaintiffs were required to establish a meritorious cause of action, a reasonable excuse for the delay in prosecution of the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc.,

p. 474

289 AD2d 372 [2001]; Basetti v Nour, 287 AD2d 126 ,131 [2001]). The plaintiffs failed to make the requisite showing. Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion. Ritter, J.P., Smith, Friedmann, H. Miller and Crane, JJ., concur.

Cases cited

Fernandez v. Staten Island Oral & Maxillofacial Surgery Associates, P. C. 289 AD2d 372 N.Y. App. Div. 2001-12-17 p. 474
Basetti v. Nour 287 AD2d 126 N.Y. App. Div. 2001-10-01 at 131 p. 474