BRAY v. Champion Sand and Gravel, Inc., Third-Party Defendant-Respondent.

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Bernard L. BRAY, Plaintiff-Appellant, v. THOR STEEL AND WELDING LTD., Defendant-Respondent. Thor Steel and Welding Ltd., Third-Party Plaintiff. Champion Sand and Gravel, Inc., Third-Party Defendant-Respondent.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT and KEHOE, JJ. Irwin Birnbaum, Syracuse, for Plaintiff-Appellant. Laurence F. Sovik, Syracuse, for Defendant-Respondent. Nancy L. Pontius, Syracuse, for Third-Party Defendant-Respondent.

 Supreme Court properly denied plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3404.   To prevail on the motion, plaintiff was required to demonstrate a meritorious cause of action, a reasonable excuse for his delay, his lack of intent to abandon the action and the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Tate v. Peninsula Hosp. Ctr., 255 A.D.2d 503, 503-504, 680 N.Y.S.2d 609;  Krantz v. Scholtz, 201 A.D.2d 784, 785, 607 N.Y.S.2d 183, lv. dismissed 83 N.Y.2d 902, 614 N.Y.S.2d 383, 637 N.E.2d 274;  Knight v. City of New York, 193 A.D.2d 720, 721, 597 N.Y.S.2d 737, lv. dismissed 83 N.Y.2d 800, 611 N.Y.S.2d 135, 633 N.E.2d 490).   All four elements must be established for the order of dismissal to be vacated (see, Knight v. City of New York, supra, at 721, 597 N.Y.S.2d 737;  Ornstein v. Kentucky Fried Chicken of Great Neck, 121 A.D.2d 610, 611, 503 N.Y.S.2d 643), and plaintiff failed to establish three of them.   The unsubstantiated assertions in the affirmation of plaintiff's attorney are insufficient to demonstrate either a meritorious cause of action (see, Maida v. Rite Aid Corp., 210 A.D.2d 589, 590-591, 619 N.Y.S.2d 812;  Matter of Kharrubi v. Board of Educ., 133 A.D.2d 457, 458, 519 N.Y.S.2d 671) or the absence of prejudice to defendant and third-party defendant if the action is restored to the trial calendar (see, Robinson v. New York City Tr. Auth., 203 A.D.2d 351, 610 N.Y.S.2d 296).   Further, the intermittent periods of disability claimed by plaintiff's attorney do not constitute a reasonable excuse for the delay because there is “no showing that the disability was continuous throughout the period in question” (Knight v. City of New York, supra, at 722, 597 N.Y.S.2d 737;  see, Chery v. Anthony, 156 A.D.2d 414, 416-417, 548 N.Y.S.2d 535).

Order unanimously affirmed without costs.

MEMORANDUM: