Dublar v. Miller

In an action to recover damages for personal injuries, etc., the defendants Deborah R. Miller and Herbert Miller, the Town of Brookhaven, the Town of Brookhaven Highway Department, New York Telephone Company, and Long Island Lighting Company appeal from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated August 31, 1990, which denied their motions to dismiss the complaint under CPLR 3404 and granted the plaintiffs 30 days to move to restore this action to the calendar. Ordered that the order is reversed, on the law, without costs or disbursements, the appellants’ motions are granted, and the complaint is dismissed in its entirety. Under CPLR 3404, a case stricken from the trial calendar and not restored within a year thereafter is deemed abandoned and automatically dismissed for failure to prosecute. The instant case was marked off the trial calendar on April 10, 1989, and the plaintiffs did not ask that it be restored until after motions to dismiss pursuant to CPLR 3404 were made, after the one-year period had expired. Therefore, in order to have the case restored to the calendar, the plaintiffs were required to show that they possessed a meritorious cause of action, that the appellants would not be prejudiced by restoration of the case to the trial calendar, that they had an acceptable excuse for the delay, and that they had not intended to deliberately default or abandon the action (see, Nepomniaschi v Goldstein, 182 AD2d 743; Tucker v Hotel Empl. & Rest. Empl. Union, 134 AD2d 494; Paglia v Agrawal, 124 AD2d 793; Ornstein v Kentucky Fried Chicken, 121 AD2d 610). Since the plaintiffs failed to meet any of these requirements, the court should have granted the motions to dismiss without condition (see, Hatcher v Cassanova, 180 AD2d 664; Moye v City of New York, 168 AD2d 342; Parillo v Blatt, 160 AD2d 853). Thompson, J. P., Balletta, and Rosenblatt, JJ., concur.