Opinion
2002-08898
Submitted May 28, 2003.
June 23, 2003.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jones, J.), entered August 15, 2002, which granted the plaintiffs' motion to restore the action to the trial calendar.
Murray Lemonik, Jericho, N.Y. (Kathleen M. Geiger of counsel), for appellants.
Moskowitz, Passman Edelman (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac of counsel]), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
The instant action was "marked off" the trial calendar in April 1999 and automatically dismissed in April 2000 pursuant to CPLR 3404. The plaintiffs did not move to restore the action to the trial calendar until April 2002. Under these circumstances, the plaintiffs were required to demonstrate the merit of the action, a reasonable excuse for the delay in making the motion to restore, lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197). The plaintiffs failed to satisfy all four components of the test (see Ruiz v. Roofeh, 285 A.D.2d 541).
Accordingly, the motion should have been denied.
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.