Smith v. City of New York

Full title: LARRY D. SMITH, Appellant, v. CITY OF NEW YORK, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 25, 1994

203 A.D.2d 553 (N.Y. App. Div. 1994)

612 N.Y.S.2d 929

Opinion

April 25, 1994

Appeal from the Supreme Court, Queens County (Nahman, J.).

Ordered that the order is affirmed, with costs.

It is well settled that a motion to vacate the automatic dismissal of an action pursuant to CPLR 3404 and to restore the matter to the calendar is addressed to the sound discretion of the trial court (see, Hatcher v Cassanova, 180 A.D.2d 664). We discern no improvident exercise of discretion in this case. The plaintiff has failed to affirmatively demonstrate a meritorious cause of action against the defendant, a reasonable excuse for the delay, or a lack of prejudice to the defendant (see, Knight v City of New York, 193 A.D.2d 720; Hatcher v Cassanova, supra; Calderon v County of Westchester, 111 A.D.2d 208; Hargett v Health Hosps. Corp., 88 A.D.2d 633). Miller, J.P., Lawrence, Altman and Krausman, JJ., concur.