Opinion
2002-02253
Submitted December 11, 2002.
December 30, 2002.
In an action to recover damages for personal injuries, the defendant Bergen Beach Stable, Inc., appeals from an order of the Supreme Court, Kings County (Barron, J.), dated January 17, 2002, which granted the plaintiff's motion to restore the action to the trial calendar.
Feder, Goldstein, Tanenbaum D'Errico, LLP, Carle Place, N.Y. (Anthony Palmiotto and Christopher R. Invidiata of counsel), for appellant.
Paul D. Creinis, P.C., New York, N.Y., for respondent.
Before: ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the defendant's contention on appeal, the plaintiff was entitled to the automatic restoration of the action to the trial calendar upon her timely motion (see Acheson v. Shepard, 297 A.D.2d 271; cf. Bayon v. Nardella, 296 A.D.2d 364, 365; Basetti v. Nour, 287 A.D.2d 126, 134-135). Even assuming the motion to restore had been made more than one year after the case was marked off the trial calendar, the plaintiff demonstrated a meritorious cause of action, reasonable excuse, lack of an intent to abandon, and absence of prejudice to the defendants (see CPLR 3404; Basetti v. Nour, supra at 131).
FLORIO, J.P., O'BRIEN, FRIEDMANN, ADAMS and CRANE, JJ., concur.