| Strancewilko v Martin |
| 2008 NY Slip Op 02992 [50 AD3d 671] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Walter Strancewilko, Respondent, v Neils P. Martin,Appellant, et al., Defendants. |
—[*1] Omrani & Taub, P.C., New York, N.Y. (Michael A. Taub of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Neils P. Martin appealsfrom an order of the Supreme Court, Queens County (Schulman, J.), dated May 29, 2007, whichgranted the plaintiff's motion, in effect, to vacate the automatic dismissal of the action pursuantto CPLR 3404 and to restore the action to the trial calendar.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion, in effect,to vacate the automatic dismissal of the action and to restore the action to the trial calendar isdenied.
A case marked off the trial calendar pursuant to CPLR 3404 and subsequently dismissedafter one year may be restored to the trial calendar provided that the plaintiff demonstrates theexistence of a meritorious cause of action, a reasonable excuse for the delay in prosecuting theaction, a lack of intent to abandon the action, and a lack of prejudice to the defendants (see Williams v D'Angelo, 24 AD3d538 [2005]; Sheridan v Mid-IslandHosp., Inc., 9 AD3d 490 [2004]; Basetti v Nour, 287 AD2d 126, 131 [2001]).Here, the plaintiff failed to demonstrate the existence of a meritorious cause of action. The onlyevidence in the record on the issue of liability was the plaintiff's affidavit, which stated that hismotor vehicle was struck by the appellant's motor vehicle and that he believed that he has a"meritorious cause of action." Furthermore, the plaintiff failed to submit any medical evidencedemonstrating that he sustained a serious injury within the meaning of Insurance Law §5102 (d) as a result of the accident (see Sarot v Yusufov, 301 AD2d 512, 513 [2003];Parillo v Blatt, 160 AD2d [*2]853 [1990]; Condro vJhaveri, 154 AD2d 646 [1989]). Accordingly, the plaintiff's motion, in effect, to vacate theautomatic dismissal of the action and to restore the action to the trial calendar should have beendenied. Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur.