Elba LaMarca, et al., respondents, v. Scotto Brothers Woodbury Restaurant, Inc., etc., appellant.

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

Elba LaMarca, et al., respondents, v. Scotto Brothers Woodbury Restaurant, Inc., etc., appellant.

2010–05366 (Index No. 1009/05)

Decided: September 13, 2011

MARK C. DILLON, J.P. JOSEPH COVELLO RUTH C. BALKIN PLUMMER E. LOTT SHERI S. ROMAN, JJ. Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Mike G. Kruzynski and Seth M. Weinberg of counsel), for appellant. Allen H. Weiss, Lake Success, N.Y., for respondents.

Submitted—April 27, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Grays, J.), entered December 2, 2009, which denied its motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action and granted the plaintiffs' cross motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the case to the trial calendar.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action is granted, and the plaintiffs' cross motion, in effect, to vacate the dismissal of the action and to restore the case to the trial calendar is denied.

A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked “off,” and after it has been dismissed pursuant to CPLR 3404, must demonstrate a potentially 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 defendants (see Vaream v. Corines, 78 AD3d 933;  M. Parisi & Son Constr.   Co., Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d 819, 820;  Basetti v. Nour, 287 A.D.2d 126, 130–131).   The plaintiff is required to satisfy all four components of the test before the dismissal can be vacated and the case restored (see Vaream v. Corines, 78 AD3d 933;  M. Parisi & Son Constr.   Co., Inc. v Long Is. Obs/Gyn, P.C., 39 AD3d at 820;  Krichmar v. Queens Med. Imaging, P.C., 26 AD3d 417, 419).

Here, the plaintiffs failed to satisfy all four components of the test.   The plaintiffs' conclusory and unsubstantiated claim that they did not have the funds to pay for the trial-related expenses prior to trial was insufficient to excuse the more than two-year delay in obtaining a new trial attorney and an expert witness (see Vaream v. Corines, 78 AD3d at 933–934;  Leinas v. Long Is. Jewish Med. Ctr., 72 AD3d 905, 906;  Tate v. Peninsula Hosp. Ctr., 255 A.D.2d 503, 504;  Carter v. City of New York, 231 A.D.2d 485).   Furthermore, the only activity during the two-year period between the time the case was marked off and the defendant's motion to dismiss was former counsel's motion to withdraw.   Under these circumstances, the plaintiffs failed to rebut the presumption of abandonment that attaches when a case has automatically been dismissed pursuant to CPLR 3404 (see Okun v. Tanners, 11 NY3d 762, 763;  Krichmar v. Queens Med. Imaging, P.C., 26 AD3d at 419;  Schwartz v. Mandelbaum & Gluck, 266 A.D.2d 273, 274;  Dalto v. 3660 Park Wantagh Owners, 275 A.D.2d 296).   Accordingly, the plaintiffs' cross motion, in effect, to vacate the dismissal of the action and to restore the case to the trial calendar should have been denied, and the defendant's motion, in effect, for leave to enter judgment against the plaintiffs dismissing the action should have been granted (see Vaream v. Corines, 78 AD3d at 934).

DILLON, J.P., COVELLO, BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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