Opinion
2003-04097.
Decided on March 8, 2004.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 24, 2003, which denied its motion to restore the action to the trial calendar.
Samuel Weininger, Lake Success, N.Y. (Philip R. Papa of counsel), appellant pro se.
Dubow Smith, Bronx, N.Y. (Eileen T. Rohan of counsel), for respondents.
Before: DAVID S. RITTER, J.P. SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
"A party seeking to restore a case to the trial calendar more than one year after it has been marked off, and after it has been dismissed pursuant to CPLR 3404, must establish 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 defendants" ( Kalyuskin v. Rudisel, 306 A.D.2d 246, 247; see Braun v. Safdie, 2 A.D.3d 473; Basetti v. Nour, 287 A.D.2d 126, 131). The plaintiff submitted an attorney's affirmation in an effort to demonstrate a meritorious cause of action and a reasonable excuse for the delay. Because the attorney is also an associate of the plaintiff law firm which is a party to the action, the submission of an affirmation instead of an affidavit was improper ( see CPLR 2106; Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801; Pisacreta v. Minniti, 265 A.D.2d 540; Board of Managers of Ocean Terrace Towne House Condominium v. Lent, 148 A.D.2d 408, 409). In any event, the plaintiff failed to demonstrate that it had a meritorious cause of action ( see Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458; Ocasio v. Schwertz, 284 A.D.2d 443) or a reasonable excuse for the delay ( see Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341).
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.