Opinion
2012-02-2
The PADDED WAGON, INC., Plaintiff–Appellant, v. ASSOCIATES COMMERCIAL CORPORATION, et al., Defendants,Citicapital Commercial Corporation, Defendant–Respondent.Citicapital Commercial Corporation, Counterclaim–Plaintiff–Respondent, v. The Padded Wagon, Inc., et al., Counterclaim–Defendants–Appellants.
Agulnick & Gogel, LLC, Great Neck (William A. Gogel of counsel), for appellants. Foster & Wolkind, P.C., New York (Peter B. Foster of counsel), for respondent.
Agulnick & Gogel, LLC, Great Neck (William A. Gogel of counsel), for appellants. Foster & Wolkind, P.C., New York (Peter B. Foster of counsel), for respondent.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 24, 2010, which, in this action alleging the wrongful repossession of delivery trucks, denied the motion of plaintiff and counterclaim defendants to vacate the dismissal of the action and restore it to the trial calendar pursuant to CPLR 3404, unanimously affirmed, with costs.
It is black letter law that “[a] party seeking to have a case restored to the trial calendar must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action and the absence of prejudice to the opposing party” ( Kamara v. Ambert, 89 A.D.3d 612, 612, 933 N.Y.S.2d 38 [2011] ). Furthermore “[a]ll four conditions must be satisfied” ( Campbell v. Crystal Realty Assoc. Ltd. Partnership, 276 A.D.2d 328, 328, 716 N.Y.S.2d 288 [2000] ).
Here, plaintiff failed to offer any excuse for passively waiting for a trial date and then first seeking relief more than three years after the dismissal for failure to appear ( see Spivey v. Bouteureira, 259 A.D.2d 425, 687 N.Y.S.2d 150 [1999] ). To the extent that plaintiff's excuse for the delay may be attributed to law office failure, it is unsubstantiated ( see Okun v. Tanners, 11 N.Y.3d 762, 867 N.Y.S.2d 25, 896 N.E.2d 660 [2008] ). Plaintiff's attempt to demonstrate merit for the first time in its attorney's reply, unaccompanied by an affidavit from a person claiming knowledge of the facts, was insufficient ( see Rozina v. Casa 74th Dev. LLC, 89 A.D.3d 508, 932 N.Y.S.2d 463 [2011] ).