Opinion
April 26, 1999
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion is denied.
In order to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404, the plaintiff must establish: (1) the merits of the case, (2) a reasonable excuse for the delay, (3) the absence of an intent to abandon the matter, and (4) the lack of prejudice to the nonmoving party if the case is restored to the calendar ( see, Robinson v. New York City Tr. Auth., 203 A.D.2d 351; Hatcher v. Cassanova, 180 A.D.2d 664; Hagelman v. Sheridan, 150 A.D.2d 430). All four components must be satisfied before the dismissal can be properly vacated ( see, Fico v. Health Ins. Plan, 248 A.D.2d 432, 433). In the instant case, the plaintiff's excuse for his delay in seeking to restore the action to the calendar — law office failure — was not reasonable ( see, Rodriguez v. Hercules Chem. Co., 228 A.D.2d 319; Iorio v. Galeon, 230 A.D.2d 771; Diamond v. J.B.J. Mgt. Co., 220 A.D.2d 378; Robinson v. New York City Tr. Auth., 203 A.D.2d 351). Accordingly, the plaintiff's motion should have been denied.
S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.