Opinion
2001-08313
Submitted May 1, 2002.
September 16, 2002.
In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated June 6, 2001, which, inter alia, granted the plaintiff's motion, in effect, to restore the action to the trial calendar and denied its cross motion to dismiss the complaint.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Michael Boulhosa and Meredith Drucker of counsel), for third-party defendant-appellant.
William Pagan Associates, P.C., New York, N.Y. (Tania M. Pagan and Beth N. Jablon of counsel), for respondent.
Before: DAVID S. RITTER, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs.
"A party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of any intent to abandon the matter and the lack of prejudice to the non-moving party" (Rivers v. Jamaica Water Supply Co., 250 A.D.2d 661). Moreover, all of the above requirements must be satisfied before a case can be properly restored (see Fico v. Health Ins. Plan of Greater N.Y., 248 A.D.2d 432).
The plaintiff failed to establish his entitlement to restoration of the case to the trial calendar (see Fico v. Health Ins. Plan of Greater N.Y., supra). The plaintiff's affidavit failed to specify the nature of the alleged negligence on the defendant's part, and thus, failed to demonstrate the existence of a meritorious claim. The plaintiff also failed, inter alia, to proffer a reasonable excuse for his delay in moving for the instant relief.
The cross motion is denied as unnecessary since the action was deemed dismissed on August 7, 1998.
RITTER, J.P., FLORIO, GOLDSTEIN, LUCIANO and COZIER, JJ., concur.