Opinion
Submitted October 18, 2000.
November 21, 2000.
In an action, inter alia, to recover payment for goods sold and delivered, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kitson, J.), dated December 16, 1999, which denied its motion pursuant to CPLR 3404 to restore the action to the trial calendar.
Kressel, Rothlein Roth, Massapequa, N.Y. (Stephen Kressel of counsel), for appellant.
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (Murray Greenberg and Edward G. McCabe of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
A plaintiff seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) an absence of intent to abandon the action, and (4) a lack of prejudice to the nonmoving party in the event the case is restored to the trial calendar. A plaintiff must satisfy all four elements of the test before the dismissed action can properly be restored (see, McCarthy v. Bagner, 271 A.D.2d 509; Miller v. Fein, 269 A.D.2d 371). Since the plaintiff failed to demonstrate these elements, the Supreme Court properly denied its motion to restore the action to the trial calendar (see, Kourtsounis v. Chakrabarty, 254 A.D.2d 394; Swedish v. Bourie, 233 A.D.2d 495; Knight v. City of New York, 193 A.D.2d 720).