Opinion
2001-07434
Submitted March 6, 2002.
April 8, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 1, 2001, which denied his motion to restore the action to the trial calendar.
Fratello Fox, P.C., Woodbury, N.Y. (Alexander J. Wulwick of counsel), for appellant.
Arlene Zalayet, Mineola, N.Y. (Robert T. Baer of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, SONDRA MILLER, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, JJ.
ORDERED that the order is affirmed, with costs.
A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v. Nour, 287 A.D.2d 126; McCarthy v. Bagner, 271 A.D.2d 509). The plaintiff failed to establish all of these elements. Accordingly, the Supreme Court providently exercised its discretion in denying his motion.
PRUDENTI, P.J., FLORIO, S. MILLER, FRIEDMANN and ADAMS, JJ., concur.