Opinion
2003-08542.
Decided June 14, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Huttner, J.), dated September 4, 2003, which denied their motion to restore the action to the trial calendar.
Michael A. Cervini, Jackson Heights, N.Y., for appellants.
Fields Associates (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for respondent W.A. Phieffer, Jr.
Shapiro, Beilly, Rosenberg, Aronowitz, Levy Fox, LLP, New York, N.Y. (Roy J. Karlin of counsel), for respondents Henry Cobos and Danny M. Cobos.
Before: FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, ROBERT A. SPOLZINO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
"A party seeking to restore to the trial calendar an action which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party" ( McCarthy v. Bagner, 271 A.D.2d 509). The plaintiffs did not demonstrate a reasonable excuse for their failure to appear at a trial conference on June 24, 2002, and thus failed to satisfy the standard. Accordingly, the Supreme Court properly exercised its discretion in denying the motion to restore.
SANTUCCI, J.P., H. MILLER, LUCIANO, CRANE and SPOLZINO, JJ., concur.