Laxton v. Price Chopper, Inc.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated January 6, 2000, which granted the defendant’s motion [753] to dismiss the action as abandoned and denied her cross motion to restore the action to the trial calendar. Ordered that the order is affirmed, with costs. A plaintiff seeking to restore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404 must demonstrate the existence of a meritorious cause of action, a reasonable excuse for the delay, the absence of an intent to abandon the matter, and lack of prejudice to the defendant (see, Fishman v City of New York, 255 AD2d 485). All four requirements must be met before the dismissal can be properly vacated (see, Ornstein v Kentucky Fried Chicken, 121 AD2d 610). The plaintiff failed to satisfy the standard. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.