GROUDINE v. C.B.I. Drywall Corp., third-party, Defendant-Respondent. (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 30, 2000, which denied his motion to restore the action to the calendar.

ORDERED that the order is affirmed, with costs.

 A plaintiff seeking to restore an action to the calendar after it has been marked off and dismissed pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action, and a lack of prejudice to the defendants if the action is restored (see, Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 725 N.Y.S.2d 57 [2d Dept., 2001] ).   Under the circumstances of this case, the Supreme Court properly denied the plaintiff's motion to restore the action to the calendar.   The excuse for the four-year delay in moving to restore, that the plaintiff's counsel thought the action had been restored to the calendar by the defendants and had confused this action with another action commenced by the plaintiff's decedent, was not reasonable (see, Kourtsounis v. Chakrabarty, 254 A.D.2d 394, 679 N.Y.S.2d 84).   Furthermore, in light of the inactivity during that time, the presumption of abandonment that attaches when a matter has been automatically dismissed was not rebutted (see, Furniture Village v. Schoenberger, 283 A.D.2d 607, 725 N.Y.S.2d 860 [2d Dept., 2001];  Cruz v. Volkswagen of Am., 277 A.D.2d 340, 716 N.Y.S.2d 104).

Moreover, since more than 10 years elapsed between the accident and the motion to restore the action to the calendar, the defendants would be prejudiced if the action were restored (see, Furniture Village v. Schoenberger, supra;  Cruz v. Volkswagen of Am., supra;  McCarthy v. Bagner, 271 A.D.2d 509, 710 N.Y.S.2d 249).