DeMarquez v. Gallo

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated August 18, 2004, which denied her motion to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar. Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the dismissal is vacated, and the action is restored to the trial calendar. The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion to restore the action to the trial calendar after it had been dismissed pursuant to CPLR 3404. The plaintiff demonstrated a meritorious cause of action, a reasonable excuse for the failure to timely restore, a lack of intent to abandon the matter, and a lack of prejudice to the opposing party (see Kranz v Braverman, 15 AD3d 451 [2005]). Thus, her motion should have been granted. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.