Opinion
2001-11067, 2001-04324
Submitted November 28, 2001.
December 31, 2001.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jones, J.), dated March 9, 2001, which granted the plaintiff's motion pursuant to CPLR 3404 to restore the action to the trial calendar.
Jacobowitz, Garfinkel Lesman, New York, N Y (Fiedelman McGaw [Dawn C. DeSimone] of counsel), for appellant.
Martin R. Kramer, Brooklyn, N.Y. (Thomas Torto of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., DANIEL F. LUCIANO, NANCY E. SMITH, THOMAS A. ADAMS, A. GAIL PRUDENTI, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
It is well settled that a plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, Basetti v. Nour, 287 A.D.2d 126 [2d Dept., Oct. 1, 2001]; Schwartz v. Mandelbaum Gluck, 266 A.D.2d 273; Moses v. Wilmaud Realty Corp., 262 A.D.2d 538). The plaintiff's affidavit of merit, consisting of bare and conclusory allegations, which simply mirror the allegations of the complaint and bill of particulars, was patently insufficient to establish a meritorious cause of action (see, Vargas v. Flatbush Pest Control, 178 A.D.2d 528). Accordingly, the Supreme Court erred in granting the motion.
KRAUSMAN, J.P., LUCIANO, SMITH, ADAMS and PRUDENTI, JJ., concur.