Opinion
2011-10-25
SANG SEOK NA, appellant,v.GREYHOUND LINES, INC., et al., respondents.
Paul H. Schietroma, New York, N.Y. (Powers & Santola, LLP , of counsel), for appellant.Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine and Janine Brown of counsel), for respondents.
Paul H. Schietroma, New York, N.Y. (Powers & Santola, LLP [Michael J. Hutter], of counsel), for appellant.Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine and Janine Brown of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), entered October 14, 2010, which denied his motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.
ORDERED that the order is affirmed, with costs.
A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked “off,” and after it has been dismissed pursuant to CPLR 3404, must demonstrate the existence of a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant ( see Vidal v. Ricciardi, 81 A.D.3d 635, 915 N.Y.S.2d 630; Leinas v. Long Is. Jewish Med. Ctr., 72 A.D.3d 905, 906, 898 N.Y.S.2d 500; Strancewilko v. Martin, 50 A.D.3d 671, 854 N.Y.S.2d 533; Basetti v. Nour, 287 A.D.2d 126, 131, 731 N.Y.S.2d 35).
Here, even though the plaintiff retained new counsel eight months after the action had been automatically dismissed pursuant to CPLR 3404, incoming counsel's explanation, inter alia, that he did not know that a note of issue had been filed and the matter had been stricken from the trial calendar, was not a reasonable excuse for the further two-year and two-month delay between the time he was retained and the present motion to vacate the dismissal and to restore the action to the trial calendar ( see Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc., 77 A.D.3d 885, 886, 910 N.Y.S.2d 109; Pullem v. Town of Babylon, 253 A.D.2d 805, 677 N.Y.S.2d 513; Hoenig v. Stetefeldt, 127 A.D.2d 632, 511 N.Y.S.2d 658; Berger v. Colrick, 20 A.D.2d 639, 640, 246 N.Y.S.2d 366). Furthermore, the plaintiff failed to rebut the presumption of abandonment that attached after the automatic dismissal. Other than minimal activity by prior counsel regarding the case, there was no other activity in the case during the 2 years and 10 months following its dismissal
and the plaintiff's present motion to restore ( see Vaream v. Corines, 78 A.D.3d 933, 911 N.Y.S.2d 424; Bornstein v. Clearview Props., Inc., 68 A.D.3d 1033, 1034, 890 N.Y.S.2d 354; Shah v. Carlton Gardens Hous. Co., 286 A.D.2d 432, 433, 729 N.Y.S.2d 900; Fico v. Health Ins. Plan of Greater N.Y., 248 A.D.2d 432, 433, 669 N.Y.S.2d 380). Moreover, since the subject accident occurred more than nine years prior to the date that the plaintiff made his motion, the defendants, under the circumstances of this case, would be prejudiced if the action were restored to the trial calendar ( see Vidal v. Ricciardi, 81 A.D.3d at 636, 915 N.Y.S.2d 630; Gajek v. Hampton Bays Volunteer Ambulance Corps., Inc., 77 A.D.3d at 886, 910 N.Y.S.2d 109; Bornstein v. Clearview Props., Inc., 68 A.D.3d at 1035, 890 N.Y.S.2d 354; Krichmar v. Queens Med. Imaging, P.C., 26 A.D.3d 417, 419, 810 N.Y.S.2d 488). Accordingly, the plaintiff's motion was properly denied.