Opinion
November 23, 1998
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed, with costs.
A party seeking to restore a matter to the trial calendar after it has been dismissed pursuant to CPLR 3404 must show the existence of a meritorious cause of action, a reasonable excuse for the delay, an intent not to abandon the matter, and lack of prejudice to the opposing party ( see, Carco Group v. Murphy, 233 A.D.2d 415; Bohlman v. Lorenzen, 208 A.D.2d 582; Innvar v. Schapira, 208 A.D.2d 903). All four requirements must be met to vacate a dismissal pursuant to CPLR 3404 ( see, Ornstein v. Kentucky Fried Chicken, 121 A.D.2d 610). The plaintiffs have faded to satisfy the standard in this case.
We decline to reach the plaintiffs' claim regarding the tolling provision for infancy set forth in CPLR 208, as it is being raised for the first time on appeal ( see, Murray v. Palmer, 229 A.D.2d 377; Shelton v. Shelton, 151 A.D.2d 659).
Rosenblatt, J. P., O'Brien, Sullivan, Krausman and Florio, JJ., concur.