Opinion
2001-11109
Submitted June 12, 2002
August 19, 2002.
In an action to recover damages for personal injuries, the defendant third-party plaintiff, Schindler Elevator Corporation, appeals from an order of the Supreme Court, Kings County (Jones, J.), dated November 7, 2001, which, in effect, granted the plaintiff's motion to restore the action to the trial calendar.
Keller, O'Reilly Watson, P.C., Woodbury, N.Y. (Angela A. Cutone of counsel), for defendant third-party plaintiff-appellant.
William Pagan Associates, P.C., New York, N.Y. (Tania M. Pagan and Beth N. Jablon of counsel), for plaintiff-respondent.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Richard F. Lerner of counsel), for third-party defendant-respondent.
Before: A. GAIL PRUDENTI, P.J., SONDRA MILLER, CORNELIUS J. O'BRIEN, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
A plaintiff moving to restore an action to the trial calendar more than one year after it was stricken, after it has been dismissed pursuant to CPLR 3404, must establish (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v. Nour, 287 A.D.2d 126; cf. Fernandez v. Staten Is. Oral Maxillofacial Surgery Assocs., 289 A.D.2d 372). Contrary to the appellant's contention, the plaintiff established these elements. Accordingly, the Supreme Court properly exercised its discretion in restoring the action to the trial calendar.
PRUDENTI, P.J., S. MILLER, O'BRIEN, McGINITY and CRANE, JJ., concur.