CRUZ v. VOLKSWAGEN OF AMERICA INC (2000)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated February 4, 2000, which granted the plaintiff's motion to restore the action to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

 A party seeking to restore to the trial calendar a case which has been dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the nonmoving party (see, McCarthy v. Bagner, 271 A.D.2d 509, 710 N.Y.S.2d 249;  Rivers v. Jamaica Water Supply Co., 250 A.D.2d 661, 671 N.Y.S.2d 994;  Fico v. Health Ins. Plan of Greater N.Y., 248 A.D.2d 432, 669 N.Y.S.2d 380).   The plaintiff failed to meet this burden.   The plaintiff's claim that he was unaware of a trial conference amounts to law office failure, which, under the circumstances, is not an acceptable excuse (see, Diamond v. J.B.J. Mgt. Co., 220 A.D.2d 378, 631 N.Y.S.2d 439;  Robinson v. New York City Tr. Auth., 203 A.D.2d 351, 610 N.Y.S.2d 296;  Murphy v. City of New York, 173 A.D.2d 236, 569 N.Y.S.2d 445;  Condurso v. Thumsuden, 84 A.D.2d 802, 444 N.Y.S.2d 151).   Furthermore, in light of the plaintiff's inactivity regarding the case during the 28-month delay in moving to restore the case to the calendar, the plaintiff also failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed (see, Jeffs v. Janessa, Inc., 226 A.D.2d 504, 641 N.Y.S.2d 75;  Weintraub, P.C. v. Computer Rad, 209 A.D.2d 405, 619 N.Y.S.2d 579;  Bohlman v. Lorenzen, 208 A.D.2d 582, 617 N.Y.S.2d 193).   Moreover, since over nine years had elapsed between the date of the plaintiff's accident and the date of his motion to restore the action to the trial calendar, the defendant would be prejudiced if the action was restored to the trial calendar (see, Fico v. Health Ins. Plan of Greater N.Y., supra;  Swedish v. Bourie, 233 A.D.2d 495, 650 N.Y.S.2d 765;  Carter v. City of New York, 231 A.D.2d 485, 647 N.Y.S.2d 28).

MEMORANDUM BY THE COURT.