| Bornstein v Clearview Props., Inc. |
| 2009 NY Slip Op 09602 [68 AD3d 1033] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Brian Bornstein, Respondent, v Clearview Properties, Inc.,et al., Appellants. |
—[*1] Kaplan Belsky Ross Bartell, LLP, Garden City, N.Y. (Lewis A. Bartell of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Nassau County (Parga, J.), dated March 10, 2009, which grantedthe plaintiff's renewed motion to vacate the dismissal of the action pursuant to CPLR 3404 and torestore the action to the trial calendar.
Ordered that the order is reversed, on the law, the facts, and in the exercise of discretion,with costs, and the renewed motion to vacate the dismissal of the action pursuant to CPLR 3404and to restore the action to the trial calendar is denied.
A plaintiff seeking to restore a case to the trial calendar more than one year after it has beenmarked "off," and after it has been dismissed pursuant to CPLR 3404, must demonstrate ameritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack ofintent to abandon the action, and a lack of prejudice to the defendants (see M. Parisi & SonConstr. Co., Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820 [2007]; Krichmar vQueens Med. Imaging, P.C., 26 AD3d 417, 419 [2006]; Basetti v Nour, 287 AD2d126, 131 [2001]). The plaintiff is required to satisfy all four components of the test before thedismissal can be properly vacated and the case restored (see M. Parisi & Son Constr. Co.,Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820; Krichmar v Queens Med. Imaging, P.C.,26 AD3d at 419).
Here, the plaintiff failed to meet this burden. The unsubstantiated excuse proffered by aformer attorney in counsel's law firm regarding health issues in his family and his owndepression was insufficient to excuse the more than three-year delay in moving to restore theaction after the plaintiff's prior motion to restore was denied, as there was no showing that theseproblems persisted throughout the period in question (see Bray v Thor Steel & Welding,275 AD2d 912, 912-913 [2000]; Knight v City of New York, 193 AD2d 720[1993]). Further, in light of the plaintiff's inactivity regarding the action during the delay inmoving to restore the action to the calendar, the plaintiff failed to rebut the presumption ofabandonment that attaches when a matter has been automatically dismissed (see Krichmar vQueens Med. Imaging, P.C., 26 AD3d at 419; Furniture Vil. v [*2]Schoenberger, 283 AD2d 607 [2001]; Cruz v Volkswagenof Am., 277 AD2d 340, 341 [2000]). Moreover, since more than nine years have passedbetween the time of the acts complained of and the date of the motion under review, thedefendants would be prejudiced if the action was restored to the trial calendar (see Krichmarv Queens Med. Imaging, P.C., 26 AD3d at 419; Costigan v Bleifeld, 21 AD3d 871[2005]; Kalyuskin v Rudisel, 306 AD2d 246, 247 [2003]). Accordingly, the plaintiff'srenewed motion to vacate the dismissal of the action and to restore the action to the trial calendarshould have been denied. Fisher, J.P., Santucci, Dickerson, Chambers and Lott, JJ., concur.