Opinion
April 11, 1994
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion is denied, and the complaint is dismissed.
In order to vacate a dismissal pursuant to CPLR 3404, the plaintiff must show a reasonable excuse for the delay, lack of prejudice to the adversary, a meritorious cause of action, and lack of intention to abandon (see, Gray v Sandoz Pharms., 158 A.D.2d 583). Here, the plaintiff failed to meet any of these criteria. Misplacement of a file is law office failure, which is rarely an acceptable excuse (see, e.g., Eveready Ins. Co. v Devissiere, 134 A.D.2d 323; Hoenig v Stetefelt, 127 A.D.2d 632; Egan v Federated Dept. Stores, 108 A.D.2d 718; cf., New York Tel. v Power Tech Sys., 185 A.D.2d 787), and is not acceptable here, where the plaintiff's attorney affirmed only that the file was "inadvertently misplaced" and gave no further information. The plaintiff has failed to meet his burden of showing lack of prejudice to his adversary (see, Escobar v Deepdale Gen. Hosp., 172 A.D.2d 486), since he submitted only his attorney's blanket assertion that there would be no prejudice. No showing of merit has been made, since nothing purporting to be an affidavit of merit was submitted (see, Matter of Kharrubi v Board of Educ., 133 A.D.2d 457; Fluman v TSS Dept. Stores, 100 A.D.2d 838). Finally, the three-year delay between the missed conference and the motion to vacate is indicative of the intent to abandon (see, Murphy v City of New York, 173 A.D.2d 236). Bracken, J.P., Miller, Copertino, Santucci and Altman, JJ., concur.