Opinion
2005-844 S C.
Decided December 30, 2005.
Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated March 28, 2005. The order granted defendant's motion to reargue and, upon reargument, dismissed the action and denied plaintiffs' cross motion to vacate their default and restore the case to the calendar.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
It is uncontroverted that plaintiffs cross-moved to vacate their default and restore the case to the calendar in January 2005, which was more than a year after the case had been stricken from the calendar in August 2003. Plaintiffs, therefore, were required to demonstrate (1) a reasonable excuse for their 17-month delay in moving to restore the case to the calendar, (2) meritorious claims, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant ( see Lopez v. Imperial Delivery Serv., 282 AD2d 190, 197; Hercules v. City of New York, 5 Misc 3d 129[A], 2004 NY Slip Op 51282[U] [App Term, 2d 11th Jud Dists]), which they failed to do. Consequently, we find that the court below acted properly in granting defendant's motion to dismiss and denying plaintiffs' cross motion.