The Padded Wagon, Inc., Appellant, v. Associates Commercial Corporation et al., Defendants, and Citicapital Commercial Corporation, Respondent; Citicapital Commercial Corporation, Counterclaim-Plaintiff-Respondent, v. The Padded Wagon, Inc., et al., Counterclaim-Defendants-Appellants

The Padded Wagon, Inc., Appellant, v Associates Commercial Corporation et al., Defendants, and Citicapital Commercial Corporation, Respondent. Citicapital Commercial Corporation, Counterclaim-Plaintiff-Respondent, v The Padded Wagon, Inc., et al., Counterclaim-Defendants-Appellants. [937 NYS2d 592] [MAJORITY] It is black letter law that “[a] party seeking to have a case restored to the trial calendar must demonstrate a meritorious cause of action, a reasonable excuse for the delay, a lack of intent to abandon the action and the absence of prejudice to the opposing party” (Kamara v Ambert, 89 AD3d 612, 613 [2011]). Furthermore “[a]ll four conditions must be satisfied” (Campbell v Crystal Realty Assoc. Ltd. Partnership, 276 AD2d 328, 328 [2000]). Here, plaintiff failed to offer any excuse for passively waiting for a trial date and then first seeking relief more than three years after the dismissal for failure to appear (see Spivey v Bouteureira, 259 AD2d 425 [1999]). To the extent that plaintiffs excuse for the delay may be attributed to law office failure, it is unsubstantiated (see Okun v Tanners, 11 NY3d 762 [2008]). Plaintiffs attempt to demonstrate merit for the first time in its attorney’s reply, unaccompanied by an affidavit from a person claiming knowledge of the facts, was insufficient (see Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]). Concur — Mazzarelli, J.E, Catterson, Renwick and Román, JJ.