VID v. KAUFMAN, 2006-01814 [2d Dept 4-17-2007

DECISION ORDER

The appeal from the order entered January 27, 2006, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order entered January 27, 2006, are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1]).

Pursuant to CPLR 3404, this action was automatically dismissed one year after it was marked off the calendar. The court providently exercised its discretion in denying the plaintiffs' motion to restore because they failed to demonstrate a reasonable excuse for their delay in seeking to restore, a lack of intent to abandon, a meritorious claim, and a lack of prejudice to the defendants ( see Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 418; Costigan v Bleifeld, 21 AD3d 871, 872; Sarot v Yusufov, 301 AD2d 512, 513; Haber v City of New York., 227 AD2d 378).

The court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their motion to restore because they failed to present "new facts" which were unavailable at the time of the original motion and which would change the prior determination ( see Williams v Nassau County Med. Ctr., 37 AD3d 594; Companion Life Ins. Co. of New York v All State Abstract Corp., 35 AD3d 519, 522; Giovanni v Moran, 34 AD3d 733, 734).

CRANE, J.P., SANTUCCI, FLORIO, DILLON and BALKIN, JJ., concur.