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BORRELLI v. MAYE
Appellate Division of the Supreme Court of New York, Second Department.
Apr 8, 2002
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ORDERED that the order is affirmed, with costs.
A plaintiff seeking to restore a case to the trial calendar more than one year after it was stricken, and after it has been dismissed pursuant to CPLR 3404, must establish all of the following: (1) a meritorious cause of action, (2) a reasonable excuse for the delay in prosecution of the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Basetti v. Nour, 287 A.D.2d 126; McCarthy v. Bagner, 271 A.D.2d 509). The plaintiff failed to establish all of these elements. Accordingly, the Supreme Court providently exercised its discretion in denying his motion.
PRUDENTI, P.J., FLORIO, S. MILLER, FRIEDMANN and ADAMS, JJ., concur.
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