Opinion
Submitted January 3, 2000
February 10, 2000
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated April 29, 1999, which denied his motion pursuant to CPLR 3404 to restore the action to the trial calendar, and (2) an order of the same court, dated July 19, 1999, which denied his motion to renew the prior motion to restore the action to the trial calendar.
Michael Fuller Sirignano, Cross River, N.Y., for appellant.
James A. Steinberg, Poughkeepsie, N.Y. (Jonathan E. Symer of counsel), for respondent.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL W. JOY, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs.
A plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate (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 defendant in the event the case is restored to the trial calendar (see, Collins v. New York City Health Hosp. Corp., 266 A.D.2d 178 [2d Dept., Nov. 1, 1999]; Balducci v. Brookdale Hosp. Ctr., 265 A.D.2d 516 [2d Dept., Oct. 25, 1999]; Rudy v. Chasky, 260 A.D.2d 625 ). The plaintiff must satisfy all four components of the test before the dismissed case can be properly restored to the calendar (see, Schwartz v. Mandelbaum Gluck, 266 A.D.2d 273 [2d Dept., Nov. 8, 1999]; Collins v. New York City Health Hosp. Corp., supra; Aguilera v. 366 Hewes St. Assocs., 265 A.D.2d 436; [2d Dept., Oct. 18, 1999]; Morgano v. Man-Dell Food Stores, 259 A.D.2d 679 ). Since the plaintiff in the instant case failed to meet any of the four components of the test, the court properly denied his motion to restore the case to the calendar.
In addition, the court properly denied the plaintiff's motion to renew his prior motion to restore. A motion to renew must be supported by new or additional facts which, although in existence at the time of a prior motion, were not known to the party seeking renewal and, consequently, not made known to the court (see, Palmer v. D.J. Borden Toledo, 266 A.D.2d 268 [2d Dept., Nov. 8, 1999]; Fandy Corp. v. Lung-Fong Chen, 265 A.D.2d 450 [2d Dept., Oct. 18, 1999]; Natale v. Jeffrey Samel Assocs., 264 A.D.2d 384 [2d Dept., Aug. 2, 1999]). Here, the new or additional facts set forth by the plaintiff in his motion to renew had been known to him at the time he made his original motion and he failed to set forth a valid explanation for failing to present those facts at that time (see, Natale v. Jeffrey Samel Assocs., supra; Palmer v. D.J. Borden Toledo, supra).