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Rodriguez v. Rachelson

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2003
306 A.D.2d 457 (N.Y. App. Div. 2003)

Opinion

2002-08898

Submitted May 28, 2003.

June 23, 2003.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jones, J.), entered August 15, 2002, which granted the plaintiffs' motion to restore the action to the trial calendar.

Murray Lemonik, Jericho, N.Y. (Kathleen M. Geiger of counsel), for appellants.

Moskowitz, Passman Edelman (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac of counsel]), for respondents.

Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The instant action was "marked off" the trial calendar in April 1999 and automatically dismissed in April 2000 pursuant to CPLR 3404. The plaintiffs did not move to restore the action to the trial calendar until April 2002. Under these circumstances, the plaintiffs were required to demonstrate the merit of the action, a reasonable excuse for the delay in making the motion to restore, lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197). The plaintiffs failed to satisfy all four components of the test (see Ruiz v. Roofeh, 285 A.D.2d 541).

Accordingly, the motion should have been denied.

SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.


Summaries of

Rodriguez v. Rachelson

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2003
306 A.D.2d 457 (N.Y. App. Div. 2003)
Case details for

Rodriguez v. Rachelson

Case Details

Full title:ISRAEL RODRIGUEZ, ET AL., respondents, v. SYLVIA RACHELSON, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 23, 2003

Citations

306 A.D.2d 457 (N.Y. App. Div. 2003)
762 N.Y.S.2d 261

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