Opinion
April 16, 1992
Appeal from the Supreme Court, New York County (Martin Evans, J.).
Plaintiff Todd Company commenced an interpleader action in 1982 to determine the ownership of certain funds deposited in plaintiff's bank account. Various defendants, including Jay Birnbaum (Jay), asserted counterclaims and crossclaims alleging conflicting ownership interests in the funds. On April 21, 1988, Jay filed a note of issue. On June 20, 1988, the action was stricken from the trial calendar on plaintiff's motion. Nothing was done to restore the case to the calendar within a year of that order, and as a result the case was automatically deemed abandoned and dismissed by operation of CPLR 3404. In November, 1990, 29 months after the case was stricken from the calendar, Jay moved to vacate the dismissal and restore the case to the calendar, over opposition of the counterclaim defendants Todd Company and Michael Fromer, and the crossclaim defendant (now deceased) Saul Birnbaum.
An action dismissed pursuant to CPLR 3404 may only be restored upon a showing of a meritorious cause of action, a reasonable excuse for the delay, a lack of prejudice to the opposing parties, and a lack of intent to abandon the action (Moye v City of New York, 168 A.D.2d 342, lv dismissed 77 N.Y.2d 940; Mamet v Mamet, 132 A.D.2d 479, lv denied 70 N.Y.2d 611 ). All the above components must be satisfied in order for the dismissal to be properly vacated (Ornstein v Kentucky Fried Chicken, 121 A.D.2d 610).
The unexplained failure of Jay's several attorneys to have attended to this matter during the 29 months since the case was marked off the calendar does not constitute a reasonable excuse for the delay (La Froscia Constr. Corp. v City of Yonkers, 140 A.D.2d 496; Hoenig v Stetefeldt, 127 A.D.2d 632). Nor did Jay establish the merits of his claims by "submitting an affidavit, containing evidentiary facts, capable of being established at trial, by a person competent to attest to the meritorious nature of the action" (Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720, 722, appeal dismissed 69 N.Y.2d 874). Finally, Jay's motion does not satisfy the "lack of prejudice to the opposing parties" test because during the 29-month period Saul Birnbaum, Jay's true adversary in the action and a principal witness to the facts (in 1981-1982) underlying Jay's claims, became fatally ill with cancer, and he is now deceased (see, Gray v Sandoz Pharms., 158 A.D.2d 583, lv dismissed 75 N.Y.2d 1005; Tucker v Hotel Employees Rest. Employees Union, 134 A.D.2d 494).
Any of the three deficiencies in Jay's motion to vacate the automatic dismissal of the action and restore it to the calendar required denial of the motion. Accordingly, the order which granted the motion is reversed, and the action is dismissed in its entirety.
Concur — Murphy, P.J., Carro, Wallach, Ross and Rubin, JJ.