Stern v. Astino

Full title: KENNETH STERN et al., Respondents, v. JOSEPH ASTINO et al., Appellants

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

Date published: May 29, 1990

161 A.D.2d 757 (N.Y. App. Div. 1990)

556 N.Y.S.2d 656

Opinion

May 29, 1990

Appeal from the Supreme Court, Nassau County (Saladino, J.).

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

In seeking to have their case restored to the Trial Calendar pursuant to CPLR 3404, the plaintiffs were required to show a reasonable excuse for the delay in prosecution, merit to their action, and a lack of prejudice to the defendants (see, Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720).

Upon a review of the record, we find that no clear explanation was given for the inordinate delay in the prosecution of this matter. Having failed to sustain their burden on the motion to restore, the plaintiffs should not have been allowed to restore their action to the Trial Calendar (see, CPLR 3404; Rodriguez v. Middle Atl. Auto Leasing, supra, at 723). Mangano, P.J., Bracken, Kunzeman and Harwood, JJ., concur.