Sanchez v. Denkberg

• Decision Date: 10 January 2001
• Citation: 726 N.Y.S.2d 873
• Parties: (A.D. 2 Dept. 2001) Harry Sanchez, et al., respondents, v. Steven Denkberg, appellant (and a third-party action). 2000-09055 Submitted-
• Court: New York Supreme Court — Appellate Division

Page 873

726 N.Y.S.2d 873 (A.D. 2 Dept. 2001)

Harry Sanchez, et al., respondents, v. Steven Denkberg, appellant

(and a third-party action).

2000-09055

SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

Submitted-January 10, 2001

June 18, 2001

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant.

J. David Love (Stephen David Fink, Forest Hills, N.Y., of counsel), for respondents.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated July 20, 2000, which granted the plaintiffs' motion to vacate the automatic dismissal of the complaint pursuant to CPLR 3404 and to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned. The Supreme Court may restore the case if the movant establishes the merits of the cause of action, a reasonable excuse for the delay, lack of intent to abandon the action, and a lack of prejudice to the other party (see, Lopez v Imperial Delivery Serv., A.D.2d 725 N.Y.S.2d 57; Rifkin v Herman, 262 A.D.2d 389). The plaintiffs met this burden, and thus, the Supreme Court providently exercised its discretion in restoring the plaintiffs' action to the trial calendar.

BRACKEN, P.J., S. MILLER, McGINITY and SCHMIDT, JJ., concur.