Corporations
James McClure, Respondent, v. Schindler Elevator Corporation, Defendant and Third-Party Plaintiff-Appellant. Brookdale Hospital Medical Center, Third-Party Defendant-Respondent
297 A.D.2d 335746 N.Y.S.2d 394·New York Supreme Court, Appellate Division·2002·NY
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Opinion
James McClure, Respondent, v Schindler Elevator Corporation, Defendant and Third-Party Plaintiff-Appellant. Brookdale Hospital Medical Center, Third-Party Defendant-Respondent.
[746 NYS2d 394]
[MAJORITY]
A plaintiff moving to restore an action to the trial calendar more than one year after it was stricken, after it has been dismissed pursuant to CPLR 3404, must establish (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v Nour, 287 AD2d 126; cf. Fernandez v Staten Is. Oral & Maxillofacial Surgery Assoc., 289 AD2d 372). Contrary to the appellant’s contention, the plaintiff established these elements. Accordingly, the Supreme Court properly exercised its discretion in restoring the action to the trial calendar. Prudenti, P.J., S. Miller, O’Brien, McGinity and Crane, JJ., concur.