Knight v. City of New York

• Decision Date: 17 May 1993
• Citation: Knight v. City of New York, 597 N.Y.S.2d 737, 193 A.D.2d 720 (N.Y. App. Div. 1993)
• Parties: Jean KNIGHT, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 737

597 N.Y.S.2d 737

193 A.D.2d 720

Jean KNIGHT, et al., Appellants, v.CITY OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division Second Department.

May 17, 1993.

Martin S. Streit, Forest Hills (Warren S. Hecht and Abraham Hecht, on the brief), for appellants.

O. Peter Sherwood, Corp.Counsel, New York City(Fay Leoussis, of counsel; Jonathan H. Kranzler, on the brief), for respondents.

Before MILLER, J.P., and O'BRIEN, COPERTINO and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Kings County(Hutcherson, J.), dated December 4, 1990, which denied their motion to vacate the dismissal of their action pursuant to CPLR 3404, and (2) as limited by their brief, from so much of an order of the same court, entered April 25, 1991, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated December 4, 1990, is dismissed, as that order was superseded by the order entered April 25, 1991, made upon reargument; and it is further,

ORDERED that the order entered April 25, 1991, is affirmed insofar as appealed from; and it is further,

ORDERED that the respondents are awarded one bill of costs.

The infant plaintiff was struck and injured by a police patrol car driven by the defendant police officer on September 29, 1973.The plaintiffs' negligence action, commenced in 1974, was marked off the calendar because of counsel's failure to appear at a status conference on March 11, 1988.When counsel failed to move to reinstate the action, it was automatically dismissed pursuant to CPLR 3404 on March 11, 1989.The plaintiffs moved to vacate the dismissal and to restore the case to the calendar by notice of motion dated August 24, 1990.

A court, in a proper exercise of discretion, may grant a motion to vacate a dismissal pursuant to CPLR 3404, provided that the plaintiff carries his affirmative burden of establishing that: (1)he has a meritorious cause of action, (2) there was a reasonable excuse for the delay, (3) there was a lack of intent to abandon the action, and (4) there is no prejudice to the defendant(see, Malpuss v. Mavis Tire Supply Corp., 143 A.D.2d 890, 533 N.Y.S.2d 397)."All of the [four] components of the test must be satisfied in order for the order of dismissal to be properly vacated" (Ornstein v. Kentucky Fried Chicken of Great Neck, 121 A.D.2d 610, 611, 503 N.Y.S.2d 643[emphasis supplied].

Here, the Supreme Court properly found, the defendants would be unduly prejudiced by being forced to defend an action based on an event that occurred in 1973.The plaintiffs have utterly failed to carry their burden to affirmatively demonstrate that the defendants have not been prejudiced by the passage of time, where, as here, nearly 20 years have elapsed since the accident (see, Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486, 567 N.Y.S.2d 842;Gray v. Sandoz Pharms. Div. of Sandoz, Inc., 158 A.D.2d 583, 551 N.Y.S.2d 551;Rodriguez v. Middle Atl. Auto Leasing, 122...