Opinion
November 13, 1989
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, and the motion is denied.
On March 23, 1987, this case was marked "off" the calendar when the plaintiffs' counsel failed to appear at a conference. By operation of law, the action was automatically dismissed by the clerk one year later in March 1988 (see, CPLR 3404). The plaintiffs' motion to restore — in effect, a motion to vacate the dismissal and restore — was granted by the Supreme Court.
In order to vacate the automatic dismissal of a case pursuant to CPLR 3404, a plaintiff must demonstrate, inter alia, a meritorious cause of action and a reasonable excuse for the delay (see, Marabella v Lundy, 93 A.D.2d 881, affd 60 N.Y.2d 581; La Froscia Constr. Corp. v City of Yonkers, 140 A.D.2d 496). A review of the record reveals that the plaintiffs failed to establish either element.
The plaintiffs did not annex an affidavit of merit by the injured plaintiff, and the excerpts of the plaintiff's deposition failed to set forth a meritorious cause of action. In addition, there was no showing of a reasonable excuse with regard to the delay of 17 months between the case being marked off the calendar and the plaintiffs making their motion. Mangano, J.P., Thompson, Spatt and Rosenblatt, JJ., concur.