Opinion
2003-1235 RIC.
Decided July 1, 2004.
Appeal by defendant from so much of an order of the Civil Court, Richmond County (J. McMahon, J.), entered on July 16, 2003, as granted plaintiffs' motion to restore the action to the calendar.
Order unanimously reversed without costs, plaintiffs' motion to restore the action to the calendar denied and complaint dismissed.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Plaintiffs did not move to restore within one year after it was stricken from the trial calendar ( see Uniform Civil Rules for the New York City Civil Court [ 22 NYCRR] § 208.14) and were therefore required to show the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the lack of prejudice to defendant ( LoFredo v. CMC Occupational Health Servs., 189 Misc 2d 781). While a court is not precluded as a matter of law from exercising its discretion to excuse a default or delay due to law office failure ( see CPLR 2005), plaintiffs' explanation, which is in the nature of law office failure, is inadequate under the circumstances presented to excuse the delay in moving to restore the case. Moreover, plaintiffs' motion to restore was not supported by an affidavit of merit. The plaintiffs submitted affidavits which were patently insufficient to establish a meritorious cause of action. Additionally, plaintiffs failed to establish a lack of prejudice to the defendant. Accordingly, the court below improvidently exercised its discretion in restoring the case to the calendar.