Opinion
2002-06417
Submitted May 7, 2003.
June 2, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated January 22, 2002, as denied their motion to restore the action to the trial calendar.
Alvin M. Bernstone (Steve S. Efron, New York, N.Y., of counsel), for appellants.
Agen Stenz, Westbury, N.Y. (Effy Belessis of counsel), for respondent Gloria H. Rudisel.
Lewis, Johs, Avallone, Aviles Kaufman, Melville, N.Y. (Christine Malafi of counsel), for respondents Eleanor Insalaco and James Insalaco.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
A party seeking to restore a case to the trial calendar more than one year after it has been marked "off," and after it has been dismissed pursuant to CPLR 3404, must establish a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see Borrelli v. Maye, 293 A.D.2d 506; Basetti v. Nour, 287 A.D.2d 126, 130; Luzzi v. Tobin, 288 A.D.2d 193; Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486). The only activity by the plaintiffs during the 2 1/2-year period between the time that the action was marked "off" the calendar and the present motion to restore was a prior motion to restore that led to a stipulation obligating the plaintiffs to complete discovery before "the court may decide the motion to restore the case to the calendar." While this is a factor to be considered in determining whether the plaintiffs overcame the presumption of abandonment which attaches once the action was automatically dismissed (see Schwartz v. Mandelbaum Gluck, 266 A.D.2d 273; Escobar v. Deepdale Gen. Hosp., supra at 487; Bergan v. Home for Incurables, 124 A.D.2d 517), the plaintiffs failed to explain the delay in making the present motion to restore the case to the calendar. Furthermore, since over six years passed between the date of the accident and the date of the motion to restore, the defendants would be prejudiced if the the action was restored to the trial calendar (see Cruz v. Volkswagen of Am., 277 A.D.2d 340; McCarthy v. Bagner, 271 A.D.2d 509, 510; Tate v. Peninsula Hosp. Ctr., 255 A.D.2d 503). Accordingly, the Supreme Court providently exercised its discretion in denying the motion to restore the action to the calendar.
FLORIO, J.P., S. MILLER, FRIEDMANN, ADAMS and RIVERA, JJ., concur.