Kanner v. Rubin

— In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated July 16, 2002, which denied her motion to restore the case to the trial calendar. Ordered that the order is affirmed, with costs. A party moving to restore an action to the trial calendar more than one year after it was stricken from the calendar, after it has been dismissed pursuant to CPLR 3404, must establish (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v Nour, 287 AD2d 126 [2001]; Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc., 289 AD2d 372 [2001]). The plaintiff failed to make the requisite showing. Accordingly, the Supreme Court providently exercised its discretion in denying the motion. Santucci, J.P., Goldstein, Schmidt and Cozier, JJ., concur.