The plaintiff's unsubstantiated assertion that she entered into an arbitration agreement with Karmakar was insufficient to excuse the delay ( cf. Home Ins. Co. v. Meyers Parking Sys., 186 A.D.2d 497, 498, 589 N.Y.S.2d 322;National Agric. Commodities v. International Commodities Export Co., 108 A.D.2d 735, 736, 484 N.Y.S.2d 902). Furthermore, even though the parties engaged in negotiations regarding arbitration, the plaintiff failed to demonstrate that she was actively engaged in these negotiations for any significant amount of time prior to the default date or during the ensuing one-year period between the default date and Karmakar's motion to dismiss ( see Kourtsounis v. Chakrabarty, 254 A.D.2d 394, 395, 679 N.Y.S.2d 84;Prado v. Catholic Med. Ctr. of Brooklyn & Queens, 237 A.D.2d 341, 655 N.Y.S.2d 58;Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186;cf. Katina, Inc. v. Town of Hempstead, 13 A.D.3d 343, 344, 786 N.Y.S.2d 552;Scarlett v. McCarthy, 2 A.D.3d 623, 624, 768 N.Y.S.2d 342). In any event, the conclusory allegations contained in the verified complaint were insufficient to demonstrate that the plaintiff had a potentially meritorious cause of action against Karmakar ( see Mooney v. City of New York, 78 A.D.3d 795, 797, 911 N.Y.S.2d 395;Koehler v. Sei Young Choi, 49 A.D.3d 504, 505, 854 N.Y.S.2d 726;Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456).
In any event, the plaintiff failed to demonstrate that it had a meritorious cause of action ( see Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 458; Ocasio v. Schwertz, 284 A.D.2d 443) or a reasonable excuse for the delay ( see Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341). RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.
It is well settled that a party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the absence of prejudice to the nonmoving party (see, Lopez v. Imperial Delivery Serv., A.D.2d [2d Dept., May 14, 2001]); Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341; Kopilas v. Peterson, 206 A.D.2d 460).
"To vacate a CPLR 3404 order of dismissal, plaintiff must rebut the presumption of abandonment and demonstrate excusable neglect, a meritorious claim and lack of prejudice to defendants" (Christopher v. Horton, 105 A.D.2d 1119, citing O'Dell v. Stornelli, 98 A.D.2d 957). The court properly rejected many of the excuses proffered by plaintiffs, including delays occasioned by the appointment of a fiduciary of the estate (see, Hewitt v. Booth Mem. Med. Ctr., 178 A.D.2d 401), alleged ongoing settlement negotiations (see, Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341), and alleged uncertainty over who was representing defendants. The court, however, never expressly considered the claims that the delay was caused by the illness of plaintiffs' attorney.
Under these circumstances, the plaintiff failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed pursuant to CPLR 3404 ( see, Jeffs v. Janessa, Inc., 226 A.D.2d 504; Roland v. Napolitano, 209 A.D.2d 501; Bohlman v. Lorenzen, 208 A.D.2d 582). Moreover, in view of the fact that eight years had passed between the occurrence of the accident that allegedly caused the plaintiff's injuries and the time that the plaintiff moved to restore the case to the trial calendar, and that discovery had not yet been completed, the appellant would be significantly prejudiced if the matter were restored to the trial calendar ( see, Swedish v. Bourie, 233 A.D.2d 495; Prado v. Catholic Med. Ctr. of Brooklyn Queens, 237 A.D.2d 341; Carter v. City of New York, 231 A.D.2d 485; Jeffs v. Janessa, Inc., supra.
It is well established that a party wishing to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 may have the action reinstated upon a demonstration of four essential factors, (1) the case has merit, (2) there is a reasonable excuse for the delay, (3) there was no intent to abandon the matter, and (4) there is no prejudice to the non-moving party ( see, e.g., Prado v. Catholic Med. Ctr., 237 A.D.2d 341; Swedish v. Bourie, 233 A.D.2d 495; Carter v. City of New York, 231 A.D.2d 485; Knight v. City of New York, 193 A.D.2d 720; Civello v. Grossman, 192 A.D.2d 636). Under the circumstances. presented here, the defendants are prejudiced by the fact that more than 21 years have elapsed since the commission of the alleged medical malpractice.
Therefore, it is the Court's view that the evidence of this case is time sensitive, and therefore the 14-year gap between the alleged malpractice incident and this application to vacate a dismissal is significantly prejudicial to the defendant. Prado v. Catholic Medical Center of Brooklyn and Queens, Inc. 237 A.D.2d 341 [2d Dept. 1997]; Civello v. Grossman, 192 A.D.2d 636 [2d Dept. 1993]; Hewitt v. Booth Memorial Medical Center, 178 A.D.2d 401 [2d Dept. 1991]). CONCLUSION
Therefore, it is the court's view that the evidence of this case is time sensitive, and therefore the 14-year gap between the alleged malpractice incident and this application to vacate a dismissal is significantly prejudicial to the defendant. (Prado v Catholic Med. Ctr., 237 AD2d 341 [2d Dept 1997]; Civello v Grossman, 192 AD2d 636 [2d Dept 1993]; Hewitt v Booth Mem. Med. Ctr., 178 AD2d 401 [2d Dept 1991].) Conclusion