Opinion
August 2, 1993
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the appellants' motions are granted, and the complaint is dismissed in its entirety.
Under CPLR 3404, a case stricken from the trial calendar and not restored within a year thereafter is deemed abandoned and automatically dismissed for failure to prosecute. The instant case was marked off the trial calendar on April 10, 1989, and the plaintiffs did not ask that it be restored until after motions to dismiss pursuant to CPLR 3404 were made, after the one-year period had expired.
Therefore, in order to have the case restored to the calendar, the plaintiffs were required to show that they possessed a meritorious cause of action, that the appellants would not be prejudiced by restoration of the case to the trial calendar, that they had an acceptable excuse for the delay, and that they had not intended to deliberately default or abandon the action (see, Nepomniaschi v Goldstein, 182 A.D.2d 743; Tucker v Hotel Empl. Rest. Empl. Union, 134 A.D.2d 494; Paglia v Agrawal, 124 A.D.2d 793; Ornstein v Kentucky Fried Chicken, 121 A.D.2d 610).
Since the plaintiffs failed to meet any of these requirements, the court should have granted the motions to dismiss without condition (see, Hatcher v Cassanova, 180 A.D.2d 664; Moye v City of New York, 168 A.D.2d 342; Parillo v Blatt, 160 A.D.2d 853). Thompson, J.P., Balletta, and Rosenblatt, JJ., concur.
Although CPLR 3404 provides that a case stricken from the calendar and not restored within one year thereafter shall be deemed abandoned, the court nevertheless retains discretion to grant a motion to restore the case to the calendar after the year has expired (see, Tucker v Hotel Empl. Rest. Empl. Union, 134 A.D.2d 494; Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720, 721). In my view, the Supreme Court did not improvidently exercise its discretion in granting the plaintiffs leave to move to restore this action to the calendar after it had been marked off the calendar for approximately 14 months.