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WILLIAM M. MAGNONE et al., Respondents, v. GEMM CUSTOM BROKERS, INC., Appellant, et al., Defendant.

A case struck from the calendar pursuant to CPLR 3404 and subsequently dismissed after one year may be restored to the trial calendar provided that the plaintiff demonstrates a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant ( see Sheridan v. Mid-Island Hosp., Inc., 9 AD3d 490; Cobos v. Phieffer, 8 AD3d 424). The plaintiffs failed to demonstrate, inter alia, that they have a meritorious cause of action ( see Adamson v. Evans, 283 AD2d 527; Surace v. Kersten, 278 AD2d 226; Phifer v. State of New York, 204 AD2d 612). Accordingly, their motion to vacate the dismissal and to restore the action to the trial calendar should have been denied. concur.

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MAGNONE v. GEMM CUSTOM BROKERS, INC
(Apr 11, 2005)