Opinion
June 26, 1995
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the branch of the plaintiff's motion which is to restore the action to the court's calendar insofar as it is asserted against the defendant Buck Kreights Co., Inc., is denied, and the action against the remaining defendant is severed.
It is well settled that a party seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the merits of the case, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and the absence of prejudice to the nonmoving party (see, Kopilas v. Peterson, 206 A.D.2d 460; Knight v. City of New York, 193 A.D.2d 720). The plaintiff in this case has failed to establish all of these criteria. Thus, the branch of the plaintiff's motion which was to restore the action to the trial calendar insofar as it is asserted against the appellant is denied (see, Kopilas v Peterson, supra; Knight v. City of New York, supra). Mangano, P.J., O'Brien, Ritter, Pizzuto and Florio, JJ., concur.