Opinion
January 26, 1998
Appeal from the Supreme Court, Queens County (Lane, J.).
Ordered that the order is affirmed, with costs.
Restoration of a case to the trial calendar subsequent to an automatic dismissal pursuant to CPLR 3404 is a proper exercise of the court's discretion if the movant establishes the merit of the action, an excuse for the delay, the lack of intent to deliberately default or abandon the action, and a lack of prejudice to the nonmoving party ( see, Felder v. New York City Tr. Auth., 238 A.D.2d 543; Ornstein v. Kentucky Fried Chicken, 121 A.D.2d 610). The plaintiff here satisfied that standard. The plaintiff's proposed stipulation to restore the matter to the trial calendar, which was sent to the defendants, demonstrated that she did not intend to abandon the matter. In addition, it appears that the defendants will not be prejudiced. The law office failure which the plaintiff proffered constituted an acceptable excuse for the delay under the circumstances of this case. The plaintiff's affidavit of merit and supporting medical reports demonstrated a potentially meritorious cause of action.
The defendants' additional contention is without merit.
Miller, J.P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.