Opinion
October 2, 1995
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion is denied, and the action is dismissed.
Before a court may grant a motion to vacate the dismissal of an action pursuant to CPLR 3404, the plaintiff must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v. City of New York, 193 A.D.2d 720, 721; Malpass v. Mavis Tire Supply Corp., 143 A.D.2d 890; Ornstein v. Kentucky Fried Chicken, 121 A.D.2d 610, 611).
In the present case the action was marked off the trial calendar for more than two and one-half years. The plaintiff's only excuse for the delay was that his counsel inadvertently misplaced the file and thought that the matter had been restored to the trial calendar. That excuse is not acceptable (see, Robinson v. New York City Tr. Auth., 203 A.D.2d 351). Mangano, P.J., O'Brien, Ritter, Pizzuto and Florio, JJ., concur.