Opinion
Submitted March 1, 2000.
April 13, 2000.
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered April 30, 1999, which denied her motion to restore the action to the trial calendar.
Segan, Nemerov Singer, P.C., New York, N.Y. (Fred J. Hirsh of counsel), for appellant.
Pulvers, Pulvers, Thompson Kutner, P.C., New York, N Y (Charles E. Kutner of counsel), for respondents.
GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
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 (see, Rivers v. Jamaica Water Supply Co., 250 A.D.2d 661 ; Fico v. Health Ins. Plan of Greater New York, 248 A.D.2d 432 ; Lafata v. 712 Fifth Ave. Assocs., 238 A.D.2d 552 ). The plaintiff failed to meet this burden. The plaintiff failed to appear for trial (see, Lee v. Chion, 213 A.D.2d 602 ). Furthermore, in light of the plaintiff's inactivity regarding the case during the one-year and four-month delay in moving to restore the case to the calendar, the plaintiff also failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see, Jeffs v. Janessa, Inc., 226 A.D.2d 504 ; Weintraub, P.C. v. Computer Rad, Inc., 209 A.D.2d 405 ;Bohlman v. Lorenzen, 208 A.D.2d 582 ). Moreover, since over six years have passed since the alleged malpractice and the time that the plaintiff moved to restore the action to the trial calendar, we cannot conclude that the defendants would not be prejudiced if the action were restored to the trial calendar (see, Fico v. Health Ins. Plan of Greater New York, 248 A.D.2d 432 , supra; Swedish v. Bourie, 233 A.D.2d 495 ; Carter v. City of New York, 231 A.D.2d 485 ).