Pellegrino v. St. Agnes Hospital, Inc.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), dated August 9, 1994, which denied its motion to dismiss the complaint for failure to prosecute, deemed the matter ready for trial, and restored it to the calendar. Ordered that the order is affirmed, with costs. In a proper exercise of its discretion, a court may grant a request to vacate a dismissal for abandonment on the basis of failure to prosecute pursuant to CPLR 3404, provided that the plaintiff carries the affirmative burden of establishing all of the following four factors: (1) a meritorious cause of action, (2) a reasonable excuse for the delay, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see, e.g., Knight v City of New York, 193 AD2d 720, 721; Malpass v Mavis Tire Supply Corp., 143 AD2d 890; Ornstein v Kentucky Fried Chicken, 121 AD2d 610, 611). The record establishes that the plaintiffs satisfied their burden of establishing each of the four factors, and the court’s ruling was, therefore, correct. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.