Opinion
December 18, 1990
Appeal from the Supreme Court, Bronx County (Lewis R. Friedman, J.).
Plaintiffs sought damages from defendant for the wrongful death of their son who committed suicide on Rikers Island in 1982. The action was commenced in May 1983. The action was marked off calendar on March 20, 1987, for plaintiffs' failure to attend a pretrial conference. Plaintiffs' counsel claimed that he had hired a calendar checking service and regularly read the New York Law Journal, but only learned that the case had been marked off in November 1989, at which time the motion was brought to vacate the default.
Cases which are not diligently pursued will be dismissed automatically one year after stricken from the calendar (CPLR 3404; Rosser v. Scacalossi, 140 A.D.2d 318). The presumption that an action so dismissed has been abandoned is rebuttable, and the action may be restored upon a showing of a meritorious cause of action, a reasonable excuse for the delay, a lack of prejudice to the opposing party, and a lack of intent to abandon the action (Rodriguez v. Middle Atl. Auto Leasing, 122 A.D.2d 720, appeal dismissed 69 N.Y.2d 874).
Plaintiffs did not satisfy all these criteria. The attorney's affirmation accompanied by copies of the pleadings was insufficient to demonstrate a meritorious cause of action; the suicide report annexed to the papers implies neither negligence nor causation (see, e.g., Bergan v. Home for Incurables, 124 A.D.2d 517). Nor did counsel present a sufficient explanation to excuse the three-year delay in moving to restore the action. Finally, the plaintiffs did not demonstrate that defendant has not been prejudiced by the delay.
Concur — Ross, J.P., Carro, Asch, Wallach and Smith, JJ.