Opinion
October 12, 2000.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 18, 1999, which, upon reargument, denied plaintiffs' previously denied motion to restore their case to the trial calendar, unanimously affirmed, without costs.
Ephrem Wertenteil, for plaintiffs-appellants.
Patrick Neglia, Christina J. Lee, Kenneth Mauro, for defendants-respondents.
Brendan T. Fitzpatrick, for third-party defendant.
Before: Nardelli, J.P., Ellerin, Wallach, Lerner, Friedman, JJ.
Plaintiffs did not satisfy the requisites for restoring this action, deemed dismissed pursuant to CPLR 3404, to the trial calendar, since they failed to appropriately demonstrate (1) the merits of the case, none of the conflicting versions of the accident submitted by plaintiffs would serve to impose liability on the owner of the premises or any other defendant, (2) a reasonable excuse for the delay, (3) the absence of an intent to abandon the matter, and (4) the lack of prejudice to defendants in the event that the case is restored (see,Almanzar v. Rye Ridge Realty Co., Inc., 249 A.D.2d 128, 129; Montes v. Mfrs. Hanover Trust Co., 197 A.D.2d 357, appeal dismissed 83 N.Y.2d 797). All four conditions must be satisfied for vacatur of a dismissal (see,Todd Co. v. Birnbaum, 182 A.D.2d 505). The court properly found plaintiffs' affidavit of merits to be inadequate and there was no explanation from counsel as to why this case, commenced in or about 1988, should have been restored when discovery had never been completed.
We have considered plaintiffs' remaining arguments and find them to be unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.