Cyrus v. Dorazio

—In an action to recover damages for breach of contract, the defendant Michael Dorazio appeals from an order of the Supreme Court, Kings County (Jones, J.), dated July 28, 1998, which granted the plaintiffs motion to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the calendar. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the action is dismissed. Before a court may grant a motion to vacate the dismissal of an action pursuant to CPLR 3404, the plaintiff must establish all of the following: (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, Diamond v J.B.J. Mgt. Co., 220 AD2d 378). The plaintiff failed to establish these elements. O’Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.